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Phthalates Ban Not Retroactive, Says CPSC

By Playthings Staff -- Gifts and Dec, 11/19/2008 12:03:00 PM

Washington, DC — The Consumer Product Safety Commission will not enforce the Consumer Product Safety Improvement Act’s phthalates-related provisions retroactively, the CPSC’s general counsel said in a letter this week.

The letter, dated Nov, 17, said that while CPSC continues to intend to enforce the CPSIA’s regulations applying new, stricter lead content standards to all toys on retailers’ shelves on Feb. 10, 2009, it would not do the same when it comes to the Act’s incoming phthalate regulations.

“….With respect to phthalates, the legal analysis is different [than for lead],” wrote CPSC General Counsel Cheryl Falvey. “With regard to phthalates, Congress created a consumer product safety standard and the clear statement of unambiguous intent to apply that standard retroactively cannot be found.”

Therefore, Falvey wrote, the CPSIA’s new phthalates standard would apply to “only those products manufactured after the effective date of the new standard.”

Last Friday, Falvey addressed the issue of enforcement of the CPSIA’s lead standards retroactively to all toys on the market on Feb. 10, 2009. She noted that “the [CPSC] is aware of the potentially significant economic impact that the new Act could have on any remaining inventory next February. However, Congress stated that children’s products that did not meet the new lead limits would be treated as ‘a banned hazardous substance’ under the Federal Hazardous Substances Act as of February 10, 2009, and made it unlawful to ‘sell, offer for sale, manufacture for sale, distribute in commerce, or import into the United States’ any banned hazardous substance.”

Therefore, CPSC is abiding by its original announcement on September 12 that “products that contain lead above the limit set in the CPSIA cannot be sold from inventory or on store shelves after February 10, 2009.”

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