Alert > Consumer Products Litigation
New Federal Phthalates Ban Held to Apply to Current Inventories; Retailers Must Test Current Inventories to Ensure Compliance With Ban as of February 10
In August 2008, Congress enacted the federal Consumer Product Safety Improvement Act of 2008 (“CPSIA”), which bans the sale of children’s products containing chemicals known as phthalates — a class of chemicals used to soften plastics commonly found in children’s toys such as teethers, bibs, dolls, plastic figures, and the like — effective February 10, 2009. On February 5, 2009, a federal judge in the Southern District of New York held that this ban applies even to those children’s products currently on the shelves, as opposed to those manufactured after February 10. The ruling thus requires all retailers to test their current inventories now, and to remove those children’s products unless they can verify the products do not contain phthalates above proscribed levels.
Case Summary
Congress enacted the CPSIA in August 2008, thereby amending the Consumer Product Safety Act of 1972 (“CPSA”). Sections 108(a) and 108(b)(1) of the CPSIA make it unlawful, beginning on February 10, 2009, to “manufacture for sale, offer for sale, distribute in commerce, or import into the United States” any “children’s toy” or “child care article” containing levels of certain phthalates exceeding 0.1 percent, or 1,000 parts per million.1 Section 108(a) contains a permanent ban on three specific phthalates, commonly known as DEHP, DBP, and BBP; Section 108(b)(1) also places an interim ban until a final rule is promulgated with respect to three additional phthalates — commonly known as DINP, DIDP, and DnOP — if found in those “children’s toy[s] that can be placed in a child’s mouth” or in “child care articles.”2
In response to an inquiry made last November by several retailers, the Consumer Product Safety Commission issued an advisory opinion letter allowing the sale of existing inventory of children’s products containing phthalates as long as they were manufactured before February 10, 2009. Shortly thereafter, two consumer advocacy groups filed a lawsuit, National Resources Defense Council and Public Citizen v. U.S. Consumer Product Safety Commission, challenging the Commission’s decision. The Commission argued that Congress expressly created an exception for existing inventory by providing in CPSIA Section 108(d) that the phthalate prohibitions “shall be considered consumer product safety standards under the Consumer Product Safety Act [CPSA].”3 Under Section 2058(g)(1) of the CPSA, a consumer product safety standard is applicable only to products manufactured after the effective date of the standard. Therefore, the Commission argued, the designation of the phthalate prohibitions as consumer product safety standards triggered the inventory exception in Section 2058(g)(1).
In National Resources Defense Council, U.S. District Judge Paul Gardephe disagreed. Citing the text of the CPSIA, various canons of statutory construction, and the fact that several members of Congress immediately objected to the Commission’s November 2008 interpretation of the statute, the Court ruled that the CPSIA phthalate prohibitions “unambiguously forbid the continued sale and distribution of products that violate the prohibitions, whether in inventory or otherwise.”4
Scope of Decision and Practical Implications
The Court’s ruling on the phthalates prohibitions has major implications for manufacturers or retailers who make, sell, distribute, or import (a) “children’s toys,” (b) “children’s toys that can be placed in a child’s mouth,” or (c) “child care articles.” According to the CPSIA:5
- A “children’s toy” is a “consumer product designed or intended by the manufacturer for a child 12 years of age or younger for use by the child when the child plays.” Examples include bath toys, pool toys, toddler wading pools, dolls, action figures, costumes, masks, and balloons. While ordinary books are not generally regarded as toys, certain novelty books — such as plastic books marketed as bath toys or books incorporating sounds — may be considered a “children’s toy.”6
- A “toy that can be placed in a child’s mouth” is one in which “any part of the toy can actually be brought to the mouth and kept in the mouth by a child so that it can be sucked and chewed. If a toy or part of a toy in one dimension is smaller than 5 centimeters, it can be placed in the mouth.” It does not include, however, toys that “can only be licked.” Certain inflatable toys that are designed to be inflated by the consumer but are commonly available in deflated form, such as pool toys and beach balls, may fall within the definition if they are smaller than 5 centimeters in their deflated state.7
- A “child care article” is “a consumer product designed or intended by the manufacturer to facilitate sleep or the feeding of children age 3 and younger, or to help such children with sucking or teething.” The Commission has proposed that products having direct physical contact with the child be subject to the prohibitions. Examples include teethers and pacifiers, bibs, baby blankets, high chairs, sipper cups, feeding bottles, and crib teething rails. Products that are not necessarily in direct contact with the child but that are in close proximity, such as cribs, crib mattresses, and mattress covers and pads, are also encompassed in the definition. However, products used by the parent without contact with the child, such as bottle warmers and breast pumps, would not be included. And, products primarily used for other purposes but sometimes used for sleeping or feeding, such as bouncers or strollers, would be excluded unless the manufacturer advertises the product as facilitating sleeping or eating.8
As of February 10, 2009, both retailers and manufacturers will need to test their current inventory of any of these products for compliance with the phthalate ban, and eliminate any noncompliant products from the shelves. Given the recency of the decision, quick action will be necessary and questionable products must be removed from shelves if there is not enough time to verify their compliance with the CPSIA.
The Commission has stated that it expects to issue guidance to help businesses determine what types of products are more likely to be subject to the phthalates prohibitions. Currently, a draft of the Commission’s approach can be found here, and public comments are being sought. A guide for small business, resellers, and charities has already been issued and can be accessed here.
This alert was prepared by Bingham partner Beth Boland and associate Shuan Lue. For more information, please contact the attorneys listed below:
Beth Boland, Partner
beth.boland@bingham.com, 617.951.8143
Michael Begert, Co-Chair, Consumer Products Litigation
michael.begert@bingham.com, 415.393.2693
Janice Howe, Co-Chair, Consumer Products Litigation
janice.howe@bingham.com, 617.951.8504
1 15 U.S.C. §§ 2057c(a), (b)(1).
2 These acronyms refer to di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), benzyl butyl phthalate (BBP), diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), and di-n-octyl phthalate (DnOP).
3 15 U.S.C. § 2057c(d).
4 08 Civ. 10507 (PGG), 2009 U.S. Dist. LEXIS 8265, at *15 (S.D.N.Y. Feb. 5, 2009) (emphasis supplied).
5 15 U.S.C. § 2057c(e).
6 U.S. Consumer Product Safety Commission, Notice of Availability of Draft Guidance Regarding Which Children’s Products are Subject to the Requirements of CPSIA Section 108; Request for Comments and Information 3, Feb. 12, 2008, available at
http://www.cpsc.gov/ABOUT/Cpsia/draftphthalatesguidance.pdf.
7 Id.
8 Id. at 3-4.
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