The Checkout

Sen. Boxer Says CPSC Got It Wrong on Phthalates

Annys Shin

Earlier this week, the Consumer Product Safety Commission's General Counsel issued a legal opinion laying out how the agency plans to enforce the temporary ban on certain kinds of phthalates in teethers, pacifiers and other children's products. The ban was mandated by the new product safety law that was enacted in August.

Phthalates are used to make soft plastic and have been linked to reproductive problems.

The CPSC decided that the ban would apply to products made after Feb. 10 when the ban is to take effect. This was a huge relief to manufacturers still grappling with how to comply with the rest of the law. I have heard anecdotes of businesses that have been testing like crazy because they thought the phthalate ban was going to apply retroactively to products made before Feb. 10. That is how the CPSC chose to enforce the new stricter lead limits and a comment by a CPSC official at a September meeting left everyone with that impression.

Sen. Barbara Boxer (D-Calif.), who played a key role in getting the phthalate ban included in the product safety law, was not pleased with the CPSC's decision, to say the least.

She sent a letter to the agency on Friday, the main text of which follows:

Your recent opinion that purports to interpret the Consumer Product Safety Improvement Act of 2008 to allow the continued sale of children's toys and child care products that contain harmful phthalates beyond February 10, 2009 violates the clear language of that Act.

The Feinstein-Boxer provision of the law is clear: "Beginning on the date that is 180 days after the date of enactment of this Act, it shall be unlawful for any person to manufacture for sale, offer for sale, distribute in commerce, or import into the United States any children's toy or child care article that contains concentrations of more than 0.1 percent" of certain types of phthalates (section 108 (a) & (b) (1)).

I can assure you it was the intent of Congress to ban the sale of any children's toy or child care article containing certain phthalates after 180 days post-enactment. Any other interpretation has no basis in fact.

The ban clearly includes toys and child care articles produced both before and after the enactment date of the legislation. Allowing these harmful products to remain on store shelves places children in danger and does a disservice to the American consumer.

Given the importance of this critical health and safety issue, I am asking that you immediately withdraw your opinion rather than put our children at risk.

What happens now? We'll have to wait and see.

UPDATE: So the CPSC's response boils down to "we're just following what Congress wrote."

While Boxer quoted from the provision in the law about the ban in her letter, if you keep reading there are conflicting provisions in the same section that lead to the General Counsel's interpretation, said agency spokeswoman Julie Vallese.

"Because Congress wrote it, it's not for the CPSC to change," she said. "If it's not written as Congress intended, it's up to them to fix it."

By Annys Shin |  November 21, 2008; 3:05 PM ET Annys Shin
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