Last week, the Natural Resources Defense Council, Inc. (NRDC) and Public Citizen, Inc. filed a lawsuit in federal court in New York against the Consumer Product Safety Commission (CPSC) regarding the opinion letter that Cheryl Falvey, the General Counsel of CPSC, issued on the forthcoming federal ban on phthalates in children’s toys and child care articles. NRDC and Public Citizen are seeking a judgment declaring that the CPSC decision is contrary to law and an injunction ordering the Commission to rescind the decision.

The lawsuit stems from the General Counsel’s interpretation of Section 108 of the Consumer Product Safety Improvement Act (CPSIA). The CPSIA bans the sale, manufacture, import and distribution of children’s toys and child care articles containing more than 0.1 percent of the phthalates BBP, DBP, DEHP, DIDP, DINP, or DnOP. Ms. Falvey recently issued an opinion letter to Arent Fox LLP, stating that these federal restrictions apply only to products manufactured after February 10, 2009, the effective date of the ban.

The suit, which seeks declaratory and injunctive relief, alleges the CPSC’s decision conflicts with Congress’s prohibition on the sale of children’s products containing more than 0.1 percent of certain phthalates after February 10, 2009. It argues the decision will cause harm to individuals exposed to these chemicals in children’s products and generate confusion regarding which products located on store shelves after February 10, 2009 do not contain phthalates. It also references two letters from a few Members of Congress to the CPSC stating that the interpretation conflicts with the language of the CPSIA.

NRDC and Public Citizen are nonprofit consumer advocacy organizations. According to the complaint, they filed the lawsuit on behalf of their members, who are concerned about the health risks that exposure to phthalates in toys and child care articles pose to children.

Arent Fox will continue to monitor this lawsuit. Should you have any questions about the lawsuit or the CPSIA in general, please contact any of the individuals below.

Related Documents:

• Natural Resources Defense Council, Inc. v. US Consumer Product Safety Commission

• CPSC Advisory Opinion on Phthalates

Georgia Ravitz
ravitz.georgia@arentfox.com
202.857.8939

James R. Ravitz
ravitz.james@arentfox.com
202.857.8903

Scott A. Cohn
cohn.scott@arentfox.com
212.484.3984

Robert G. Edwards
edwards.robert@arentfox.com
202.857.6346

Amy S. Colvin
colvin.amy@arentfox.com
202.857.6338