July 31, 2008
On July 30, 2008, the House of Representatives voted 424-1 in favor of a bill that would impose stricter regulations on consumer products, including children’s products, that contain certain chemicals. The bill would ban lead and phthalates from children’s products, create a searchable database of product complaints filed with the government for consumers to access, require manufacturers to make it easier for consumers to learn about recalled products, increase fines and other penalties for safety violations, and increase the responsibilities and budget of the federal Consumer Product Safety Commission. A vote on the bill is expected to take place in the Senate by the end of this week, and approval seems assured. Many reports indicate that President Bush is not expected to veto the bill.
This bill, which has been referred to as the “compromise bill” between the House and the Senate, comes after months of discussion between the two chambers and follows similar action taken by the European Union and several states. Prior to the compromise bill, the House passed a different version in December 2007, and the Senate passed an independent version in March 2008. The Senate bill was considered the tougher of the two because it recommended some reforms that the House bill did not include. For example, the House bill did not include the regulation of phthalates, provided for a smaller budget for the Commission, and imposed a less rigorous standard for testing.
Specifics of the Bill
The most significant provisions of the compromise bill are summarized below:
The compromise bill also temporarily prohibits the sale of children’s toys or child care articles manufactured for children of the age 12 and under that contain more than 0.1% of three additional phthalates: (1) diisononyl phthalate (DINP), (2) diisodecyl phthalate (DIDP), and (3) di-n-octyl phthalate (DnOP). Whether the temporary prohibition becomes permanent will be decided at a later date after a scientific review by a Chronic Hazard Advisory Panel. The ban would become permanent unless the Panel determines, and the Commission agrees, that there is a “reasonable certainty of no harm” to children, pregnant women, or other susceptible individuals.
If the compromise bill is also passed by the Senate and not vetoed by the President, the ban is scheduled to become effective in 180 days, which means that it should not affect the upcoming holiday season for toy manufacturers, suppliers, and retailers. However, many retailers and manufacturers have already toughened their own standards in anticipation of the law.
If the bill becomes effective, the enforcement provisions are as follows:
Gibson, Dunn & Crutcher has particular experience in environmental litigation and mass tort actions, including claims based on exposures to allegedly toxic products. To learn more about the firm’s Environment and Natural Resources Practice, please contact the Gibson Dunn attorney with whom you work, Jeffrey D. Dintzer (213-229-7860, [email protected]) or Brett Oberst (213-229-7189, [email protected]) in Los Angeles, or Peter E. Seley (202-887-3689, [email protected]) in Washington, D.C.
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