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NRDC and Public Citizen v. Consumer Product Safety Commission

In early December 2008, Public Citizen and the environmental group Natural Resources Defense Council sued to enforce Congress’s February 10, 2009 effective date on a ban on six phthalates in children’s toys and child care items.

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.

In a letter dated November 13, 2008, the law firm Arent Fox, on behalf of unidentified corporate 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 can stockpile toys and child care products with the banned phthalates right up to the date of the ban, and then sell them to consumers long after the ban was supposed to go into effect.

Together with NRDC, we sued the CPSC, challenging its decision as unlawful and explaining that the agency’s decision would harm the children that the law was intended to protect. The court agreed and ruled in our favor.