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Lawsuit Seeks to Enforce Ban on Toxic Toys

Dec. 4, 2008

Lawsuit Seeks to Enforce Ban on Toxic Toys

Government Agency Blocks Child Safety Measures, Confuses Consumers

NEW YORK -The Natural Resources Defense Council and Public Citizen today sued the Consumer Product Safety Commission (CPSC) to keep unsafe children’s toys and childcare products, laden with harmful chemicals called phthalates, off store shelves this winter.

This lawsuit follows a recent decision by the CPSC to create a loophole in the congressionally mandated ban that is effective Feb. 10, 2009. The loophole allows retailers to stockpile and continue selling dangerous products as long as they were manufactured before the ban date. NRDC and Public Citizen filed the suit against the CPSC in federal court in New York.

“The Consumer Product Safety Commission is ignoring the will of Congress and threatening our children’s health,” said Dr. Sarah Janssen, NRDC scientist. “Overwhelming evidence led Congress to ban these toys, a ban that some retailers have already started to adopt. The CPSC decision completely undermines those efforts by allowing banned toys to sit on the same shelves as the safe ones.”

“Parents want to know that the toys they’re purchasing are safe – it’s not too much to ask,” Janssen said. “We can’t allow CPSC to continue this confusion at the checkout aisle.”

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 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.

“Selling millions of toxic toys to kids is not the way to dispose of them, as the law clearly states,” said David Arkush, director of Public Citizen’s Congress Watch division which, along with NRDC, was heavily involved in lobbying Congress for stronger product safety rules. “It’s not only immoral – it’s illegal. It is horrifying that the federal agency charged with protecting consumers is telling the industry it can dump chemical waste on toy-store shelves.”

“It’s the job of the CPSC to protect us from harmful products, yet they have done the exact opposite in this case – creating legal loopholes where they did not exist,” said Aaron Colangelo, NRDC attorney. “They’ve strayed from their basic mandate to protect consumers.”