Rub-a-dub-pthalate

NRDC’s blog sparked some controversy yesterday over a recent New York decision interpreting the Consumer Product Safety Improvement Act (CPSIA) as banning all products with certain types of phthalates (a toxic plasticizer chemical), not just those manufactured after the law is set to take effect. NRDC had co-filed the complaint against the Consumer Product Safety Commission so naturally they were thrilled – the small business readers, not so much. They complained (reasonably) that these laws unfairly burdened smaller manufacturers and craftsmen, imposing a huge, possibly ruinous, costs for certification and testing. NRDC’s blogger responded by drawing a distinction and saying that the CPSC should be allowing exemptions for small business owners instead of dragging its feet in implementing the law.

Speaking of dragging their feet, the CPSC recently announced a delay in the part of the law that requires the testing and certification. Wait, what? So, what this means is that starting February 10, it’s illegal to sell goods that don’t comply with CPSIA standards for lead and pthalates? But there’s no way to enforce it? In short, yes. NRDC's blogger says so herself, but quietly, in the middle of the first post:

“That means that while it will be illegal to sell toys with these six phthalates, there is no verification that the toys on shelves will comply with law.”

So, the small business is touting this as a grassroots win (looks like the CPSC responded to something of an online media blitz) and NRDC is pleased with the at least symbolic victory that the law will be enforced.

Regulation is needed – the whole reason this law passed in 2008 (most sweeping product safety legislation in almost 20 years!) was because of the public outcry against all the toxic toys being recalled. But we should find a way to force large companies like Mattel to internalize the cost of outsourcing from countries like China with lax regulations. Actually, this wasn’t my idea: Boalt’s own Guzman and Bamberger wrote a CLR article on the topic.