In 2008, Congress directed the U.S. Consumer Product Safety Commission to adopt a rule addressing the potentially devastating human health effects of exposure to phthalates, a class of chemicals used in some children’s products, such as baby teethers and rattles. Nearly a decade later, the Commission adopted a rule banning the manufacture, sale, and importation into the United States of children’s toys and child care articles containing five specific phthalates.
Five industry groups asked the Fifth Circuit to invalidate the rule, contending that the CPSC had violated the Administrative Procedure Act (APA) in adopting it. Public Citizen represented the Natural Resources Defense Council, the Environmental Justice Health Alliance for Chemical Policy Reform, and Breast Cancer Prevention Partners as intervenors defending the rule. In the brief to the Fifth Circuit, we argued that the industry groups did not have standing to bring their claims and that the CPSC had complied with the APA in all respects when adopting the rule.
In a decision issued on March 1, 2021, the court held that the CPSC had “procedurally erred by not providing an adequate opportunity to comment on the rule and by failing to consider the costs of a portion of the rule.” Without vacating the rule, the court remanded it to the CPSC for further proceedings to resolve the errors, and held the case is abeyance. The CPSC then published a Federal Register notice seeking public comment on the matters identified by the court. After considering the comments, the CPSC determined that the rule did not warrant change and informed the court of the conclusion of the proceedings on remand. The court then dismissed the case.