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Albany County, N.Y., May 13 agreed to a stay of its Local Law J, which targets antimony, arsenic, benzene, cadmium, cobalt, lead, and mercury in children’s products. Numerous industry groups, under the name Safe to Play Coalition, challenged the law in U.S. district court (PSL, 4/20/15) under the preemption provisions of both the CPSA and the FHSA.
Under the stipulation, the county will continue to create its regulations with expected completion in early November. It then will provide them to the coalition’s lawyers, and the coalition will decide, within 30 days, whether to proceed with its lawsuit. The county further agreed not to enforce the regulations until at least six months after any decision or order regarding preemption, an amended complaint, or a related appeal.
The coalition includes the American Apparel & Footwear Association, Halloween Industry Association, Juvenile Products Manufacturers Association, and Toy Industry Association (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, counsel Rick Locker noted, “This law claimed to make children’s products safer when, in reality, all it did was criminalize and ban the sale of safe children’s products that parents need and want for their children.”
Other New York counties are considering similar laws. Westchester County officials passed their version May 13, and it awaited the signature of the county executive as PSL went to press. It would involve a year-long education campaign targeting especially small retailers followed by the possibility of store checks. It also requires retailers to seek confirmation from suppliers that items comply with the restrictions, which follow those in Albany. Dutchess County is considering a similar move. As well, a similar bill is moving through the state legislature.
According to the coalition's April complaint (PSL, 4/20/15):
- 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.
