State Authority to Regulate Toxins in Children's Consumer Products

Date01 March 2010
Author
40 ELR 10282 ENVIRONMENTAL LAW REPORTER 3-2010
State Authority to
Regulate Toxins in
Children’s
Consumer
Products
by Doug Farquhar and Scott Hendrick
Doug Farquhar directs the Environmental Health Program
for the National Conference of State Legislatures and is
an adjunct professor at the University of Denver School
of Law. Scott Hendrick analyzes environmental health
policy for the National Conference of State Legislatures’
Energy, Environment, and Transportation Division.

e number and amount of toxic substances being dis-
covered in children’s consumer products have risen dra-
matically since 2006. State legislatures have been at the
forefront in introducing and adopting policies to restrict
or ban specic hazards in certain products, seeking to
regulate the amount of lead, cadmium, phthalates,
bisphenyl-A, and other compounds in children’s prod-
ucts. Congress followed the state eorts by enacting the
Consumer Product Safety Improvement Act of 2008,
which bolsters previous eorts by the Consumer Prod-
uct Safety Act, the Federal Hazardous Substances Act,
and other federal laws. A s a result, some state laws are
preempted and some may have to be modied, while
others remain unchanged.
In 2007, retailers and manufacturers recalled 42 toys and
63 infant or child products due to concerns about lead
hazards. By 2008, that had increased to 79 toys and 121
infant or child products.1 is rapid rise over the last sev-
eral years in the number of recalled children’s toys, along
with media coverage of foreign-manufactured products con-
taining lead and other toxins, created a public groundswell
demanding stricter controls on toys and other children’s
products. In response, lawmakers have tightened existing toy
safety standards, increased enforcement capability of state
and federal authorities, and expanded the number of regu-
lated substances.
State lawmakers have been among the rst to react to the
spike in children’s consumer product safety recalls. An array
of legislation aimed at shoring up consumer product safet y
standards and enforcement was approved in state legislatures
across the nation since 2006. ese bills generally focused on
lowering the permissible lead content in children’s products,
banning the sale of recalled products, and regulating poten-
tially harmfu l substances found in some children’s products.
In the sum mer of 2008, the U.S. Congress followed suit
by passing the Consumer Product Safety Improvement Act
of 2008.2 Signed into law by President George W. Bush on
Aug. 14, 2008, this bill amended the major federal consumer
product safety statutes by setting lead levels in products and
paint and restricting the use of severa l chemical compounds
known as phthalates, all areas where the states had previ-
ously acted.
is Article explores the extent to which the Consumer
Product Safety Improvement Act of 2008 preempts exist-
ing state children’s consumer product safety laws. First, this
Article will review the major federal consumer protection
laws and their administration by the U.S. Consumer Product
Safety Commission (CPSC). Next, it will review the changes
made by the Consumer Product Safety Improvement Act
of 2008.  is A rticle then will ana lyze the eect of these
changes on state consumer protection laws using federal pre-
emption doctrine.
1. U.S. Consumer Product Safety Commission (CPSC), Recalls and Product
Safety News, http://www.cpsc.gov/cpscpub/prerel/prerel.html (last visited Jan.
14, 2010).
2. Pub. L. No. 110-314, 122 Stat. 3016.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
3-2010 NEWS & ANALYSIS 40 ELR 10283
I. History of Children’s Consumer
Products Regulation
A. Federal Regulation
1. The Consumer Product Safety Act of 1972
In 1972, Congress enacted the Consumer Product Safet y
Act (CPSA)3 in order:
• to protect the public against unreasonable risks of
injury associated with consumer products,
• to assist consumers in evaluating the comparative
safety of consumer products,
• to develop uniform safety standards for consumer
products and to minimize conicting State and local
regulations, and
• to promote research and investigation into t he causes
and prevention of product-related deaths, illnesses, and
injuries.4
e Act created the CPSC to ca rry out its statutory pur-
poses.5 e commission’s powers include the authority to
collect and disseminate product safety information6:
1. to conduct research and tests on consumer products,7
2. to promulgate safety sta ndards,8 and
3. to ban ha zardous products.9
e agency also has authority to regulate most consumer
products, establish guidelines and standards to protect the
public from harm, and pursue recalls for products that pres-
ent a substantial hazard.
Under the broad regulatory authority over consumer
products given to it by the Act, the CPSC has set specic
safety standards with regards to certain products or hazards.
Regarding children’s health, the commission has addressed
lead in paint, toys, and children’s products. e commission
limited the lead content in paint for consumer use. Under 16
C.F.R. §1303, any paint or similar surface-coating materials
with a lead content more than 600 parts per million (ppm) or
0.06% by weight are considered banned hazardous products
under §§8 and 9 of the CPSA.10 In addition, the commission
specically declares “toys and other articles intended for use
3. Pub. L. No. 92-573, 86 Stat. 1207.
4. 15 U.S.C. §2051(b)(1)-(4) (2008).
5. §2053.
6. §2054(a).
7. §2054(b)(1).
8. §2056.
9. §2057. See Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S.
102, 105 (1980).
10. 16 C.F.R. §1303.1(a) (2009); 15 U.S.C. §§2057, 2058.
by children that bear ‘lead-containing paint’” to be banned
hazardous products.11 e limit was established because of
the “unreasonable risk of lead poisoning in children associ-
ated with lead content of over 0.06% in paints and coatings
to which children have access.”12
2. The Federal Hazardous Substances Act
Adopted in 1960, the Federal Hazardous Substances Act
(FHSA),13 gives the commission authority to ban any toy or
article intended for use by children that contains a hazard-
ous substance if a child can gain access to t he substance.
e FHSA denes “ hazardous substance” to include any
substance that is toxic and may cause substa ntial persona l
injury or substantial illness during or as a result of any cus-
tomary or reasonably foreseeable ha ndling or use, including
reasonably foreseeable ingestion by children.14 A “banned
hazardous substance” is any toy or other article intended for
use by children that is a hazardous substance or contains a
hazardous substance in such a manner as to be susceptible of
access by a child.15
3. The CPSC
e CPSC has jurisdiction over some 15,000 products, a
sta of approximately 483, and an annual budget of approxi-
mately $105 million.16 Under the authority of the CPSA and
the FHSA, the CPSC assumes three key responsibilities to
ensure children’s consumer product safety with respect to
potentially toxic substances: setting and enforcing toy safety
standards; identifying and removing potentially hazardous
substances from the marketplace; a nd ensuring the safety of
imported children’s products.
a. Setting and Enforcing Toy Safety Standards
e commission is responsible for setting and enforcing toy
safety standards.17 In addition to those toy safety standards
set by statute, e.g., prohibition against manufactu re, sale, or
distribution of “banned haz ardous substances,” mandatory
safety standards established by the commission u nder cur-
rent regulatory authority also exist. e regulatory process
for establishing a mandatory standard can be started by vote
of the commission or by a petition from an interested party.
11. §1303.1(a)(1).
12. §1303.1(c).
13. Pub. L. No. 86-613, 74 Stat. 372 (codied as amended at 15 U.S.C.
§§1261-1278).
14. 15 U.S.C. §1261(f)(1)(A).
15. §1261(q)(1)(B).
16. U.S. CPSC, Frequently Asked Questions, http://www.cpsc.gov/about/faq.
html (last visited Jan. 14, 2010).
17. 15 U.S.C. §2056.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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