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Public Citizen * Natural Resources Defense Council

Feb. 5, 2009

Court Upholds Congressional Ban on Toxic Toys

Health Groups Win Victory for Children’s Safety

NEW YORK - In a victory for children’s health and consumer safety, a federal judge today said children’s toys and childcare products laden with harmful chemicals called phthalates must come off store shelves, ruling in favor of the Natural Resources Defense Council and Public Citizen in a lawsuit against the Consumer Product Safety Commission (CPSC).

NRDC and Public Citizen filed the lawsuit in December, following a CPSC attempt to create a loophole in the congressionally mandated ban, which goes into effect February 10, 2009. The loophole would have allowed retailers to stockpile and continue selling dangerous products as long as they were manufactured before the ban date.

"Today’s victory gives parents the certainty Congress tried to provide in the first place - that their children are safe from harmful chemicals in their toys," said Aaron Colangelo, NRDC attorney. "This is a big win for children’s health and consumer safety."

"The court understood that Congress spoke plainly and simply that, as of next Tuesday, these six dangerous chemicals will be banned from children's toys and child care products - period," said Brian Wolfman, director of the Public Citizen Litigation Group. "We are extremely gratified that our kids are going to be protected, and we are confident that the CPSC, manufacturers, distributors, and sellers will obey the law and assure that these products are off the shelves by next Tuesday."

"We have a right to expect safe toys for our children," said Dr. Sarah Janssen, NRDC scientist. "Scientific evidence compelled Congress, as well as some retailers, to take harmful toys off the shelves and now a federal court agrees. A trip to the toy store shouldn’t require a guessing game on which toys contain harmful chemicals and which toys are safe. Now shoppers will soon have peace of mind when they open their wallet."

BACKGROUND:

Phthalates are chemicals used to soften plastics in many common consumer products, including children’s toys. The chemicals are known to interfere with production of the hormone testosterone, and have been associated with reproductive abnormalities. Numerous animal studies have linked prenatal exposure to certain phthalates with decreases in testosterone, malformations of the genitalia, and reduced sperm production.

In response to heightened concern about risks to children from certain harmful phthalates and other chemicals in children’s products, Congress, by an overwhelming majority, passed the Consumer Product Safety Improvement Act (CPSIA), which was signed into law by President Bush on August 14, 2008. This Act permanently bans the sale, after February 10, 2009, of toys and child care products that contain certain phthalates and lead. The final Senate vote for this ban was 89-3, and the final House vote was 424-1.

The law passed in the U.S. bans the same six phthalates that have been banned in European toys for nearly 10 years. Other countries, including Argentina, Japan, Israel and Mexico have also banned phthalates from children’s toys. Several major retailers have previously announced that, by the end of 2008, they would remove phthalate-containing toys from their stores.

In a letter dated November 13, 2008, the law firm Arent Fox, on behalf of unidentified clients, asked the CPSC to only apply the U.S. ban to the production - and not sale - of toys with phthalates. In a legal opinion published only two business days later, on November 17, 2008, the CPSC General Counsel agreed. As a result, manufacturers could have stockpiled toys and child care products with the banned phthalates right up to the date of the ban, and then sold them to consumers long after the ban was supposed to go into effect.

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