Industry Coalition Takes Aim at Local Product Ingredient Law

Possible preemption of an Albany County, N.Y., law on ingredients in children’s products will involve the debate over mere presence versus accessibility and harmful effect. This is the core of a preemption lawsuit filed April 16 by a group of industry associations calling themselves the Safe to Play Coalition. Their complaint asserted that similar CPSC regulations under the FHSA and CPSA trigger the preemption provisions of those federal laws.

On the FHSA, preemption would involve the definition of toxic at 15 CFR 1500.3(c)(2) and its role in determining what is a hazardous product. The coalition asserted that the approach of the local law towards toxic chemicals in children’s products differs from the federal approach by focusing on mere presence versus the FHSA specification of “an accessible and harmful amount of a hazardous chemical.” The suit also pointed to amendments via the CPSIA on lead that involve measurements at parts per million and technological feasibility as support against a zero content approach.

Under the CPSA, the coalition noted the adoption of the ASTM F963 toy standard as mandatory via the CPSIA. The standard addresses many of the chemicals in the Albany law. Again, the argument involves the local law’s attempt to establish zero presence versus specified amounts.

The coalition also argued that the law conflicts with the purposes of CPSC to “minimize conflicting state and local regulations,” to set “least burdensome” rules, and to deal with “unreasonable” risks.

The law – known as Local Law J – passed in December, and the county executive signed it in January. It bans children’s products containing antimony, arsenic, benzene, cadmium, cobalt, lead, and mercury. Members of the coalition are the American Apparel & Footwear Assn., Halloween Industry Assn., Juvenile Products Manufacturers Assn. (JPMA), and Toy Industry Assn. (TIA).

Locker Greenberg and Brainin is representing all members of the coalition with Arnold & Porter giving additional representation to TIA.

In the coalition’s press release, Rick Locker commented, “Criminalizing the sale of safe toys and children’s products, without evidence to the contrary, will prevent parents in Albany County from buying the same safe toys and products for their children that are available everywhere else in the United States.” He also said, “This arbitrary law was rushed through without due consideration of its impact on hundreds of small, local retailers. Our elected officials should be held accountable for their actions and recognize that they must adhere to the U.S. Constitution.”

JPMA Executive Director Kelly Mariotti in her organization’s statement asserted, ““This law does nothing to improve safety. “The only thing this law does is negatively impact parents, caregivers and the businesses that serve them.”

TIA’s release included President Carter Keithley’s view: “We have always endorsed strict U.S. regulations and continually partner with physicians, scientists, government officials and consumer groups who can help us meaningfully reinforce the safety of toys. Local Law J, however, does nothing to increase product safety –it only hurts consumers as well as small businesses.”