Results matching “phthalate”

Kristof's crusade against phthalates - PointOfLaw Forum

At the WSJ, Allysia Finley writes that the Times columnist's alarms about phthalates aren't borne out by a consensus among scientists, and points out that -- as in the case of CPSIA -- overregulation has already proved costly.

Around the web, November 23 - PointOfLaw Forum

  • Tide turning against drug-pricing suits? Glaxo SmithKline beats back Kentucky case [Longstreth, AmLaw Daily]
  • Court in Australia deems litigation funding pact improper as "unregistered managed investment scheme" [New Lawyer]
  • Should docs be careful what they ask for? Michelle Mello of Harvard, a prominent advocate of health courts, hopes they'll significantly expand compensation [Gerencher, MarketWatch]
  • Doubts about the latest phthalates scare, and a Daubert angle [Trevor Butterworth, Forbes]
  • Claim: pay-to-play isn't such a big problem with public pension plaintiffs after all [Securities Litigation Watch, more]
  • Chevron, trial lawyer adversaries locked in lobbying combat over Ecuador suit [Politico via Law & More]

Formaldehyde, readying the plot - PointOfLaw Forum

Since we previewed the Senate Commerce subcommittee's hearing on formaldehyde in textiles and consumer products, a brief follow up. Judging from the testimony, yesterday's hearing remained factual and non-exploitative, but still provided more
foundation for litigation as well as legislation modeled on the Consumer Product Safety Improvement Act.

Regulatory glamour -- and its casualties - PointOfLaw Columns

By Virginia Postrel

This piece was originally published at the Dynamist blog, 2-11-09.

Regulation is having a glamorous moment. Unlike the messy marketplace, with its alleged propensity for producing financial catastrophe, regulation promises to make life orderly and comfortable. Not since the early 1970s, has "regulation"--the general idea, not a specific proposal--seemed so alluring. Like carrying last year's It bag or wearing too much bling, it is currently declasse to say anything bad about a regulation.

That probably explains why, the TV news video above notwithstanding, it is so hard to get conventional reporters to give a damn about the devastating effects of the Consumer Product Safety Improvement Act, signed into law last August amid hysteria about lead in kids' toys. Who, after all, could be against improving safety? Who doesn't want to keep lead out of the mouths of babes? (The CPSIA passed the House with a single dissenting vote, from Ron Paul.)

Under the law it is now illegal, as of yesterday, to sell or distribute any product--toy, book, clothes, electronic gadget, you name it--aimed primarily at children 12 and under without first having every accessible element in that product--fabric, appliques, ink, zippers, buttons, switches, doll hair, you name it--certified by a third-party lab (not, for instance, the zipper maker) as having less than 600 parts per million of lead. The law includes substantial criminal penalties and allows state attorneys general, as well as the Consumer Product Safety Commission, to enforce its provisions.

Third-party testing and certification is the sort of thing that sounds wonderful to good-government types. It's information! It's "transparency"!

It's completely nuts. To take one minor problem, existing third-party labs don't have the capacity to suddenly start testing every component of every kid's product. Reputable manufacturers like YKK Group, which sells most of the world's zippers, already do their own testing. But those tests don't qualify under the law. The CPSIA assumes a huge independent testing industry that doesn't yet exist. (I see spin-off opportunities.) And, of course, it assumes that non-existent industry will offer testing at prices operations smaller than Mattel can afford.

The law completely ignores the complex and fragmented nature of the retailers and manufacturers it regulates. It is putting one-person craft operations out of business, forcing thrift shops to sweep children's clothes and toys into the trash, and panicking apparel makers. Even in the best economic circumstances, the cost of compliance would drive small, low-margin operations out of business. And these aren't the best economic circumstances.

Yesterday's date is in the statute, but the CPSC has promised not to enforce the testing provisions for another year. Instead, it has told businesses just not to sell anything with illegal levels of lead.

The stay of enforcement provides some temporary, limited relief to the crafters, children's garment manufacturers and toy makers who had been subject to the testing and certification required under the CPSIA. These businesses will not need to issue certificates based on testing of their products until additional decisions are issued by the Commission. However, all businesses, including, but not limited to, handmade toy and apparel makers, crafters and home-based small businesses, must still be sure that their products conform to all safety standards and similar requirements, including the lead and phthalates provisions of the CPSIA.

Handmade garment makers are cautioned to know whether the zippers, buttons and other fasteners they are using contain lead. Likewise, handmade toy manufacturers need to know whether their products, if using plastic or soft flexible vinyl, contain phthalates.

The stay of enforcement on testing and certification does not address thrift and second hand stores and small retailers because they are not required to test and certify products under the CPSIA. The products they sell, including those in inventory on February 10, 2009, must not contain more than 600 ppm lead in any accessible part. The Commission is aware that it is difficult to know whether a product meets the lead standard without testing and has issued guidance for these companies that can be found on our web site.

The Commission trusts that State Attorneys General will respect the Commission's judgment that it is necessary to stay certain testing and certification requirements and will focus their own enforcement efforts on other provisions of the law, e.g. the sale of recalled products.

In a press release issued last Friday, the CPSC elaborated that it will:

  • Not impose penalties against anyone for making, importing, distributing, or selling

    • a children's product to the extent that it is made of certain natural materials (pdf), such as wood, cotton, wool, or certain metals and alloys which the Commission has recognized rarely, if ever, contain lead;
    • an ordinary children's book printed after 1985; or
    • dyed or undyed textiles (not including leather, vinyl or PVC) and non-metallic thread and trim used in children's apparel and other fabric products, such as baby blankets.

      (The Commission generally will not prosecute someone for making, selling or distributing items in these categories even if it turns out that such an item actually contains more than 600 ppm lead.)

Essentially, government policy is to encourage small businesses to ignore the law and take their chances. (But it is clear that you'd better shred any books published before 1985.)

As one of its members, I'm not a big basher of the "mainstream media," but on this story the failure to pay attention--or to dismiss concerns as too boring and uncool to cover--is egregious. If nothing else, the CPSIA makes the recession even worse.

I'm guilty myself for not blogging about a story I've followed for months. The sad truth is that I found it so depressing I couldn't muster the energy.

For more information, check out Walter Olson's exemplary coverage. I first heard about the CPSIA from Kathleen Fasanella's Fashion-Incubator blog, which has covered the law in detail, with an emphasis on what apparel makers need to do to comply.

Don't miss Kathleen's response to the pro-regulation interest groups. Opposition to the law has come almost entirely from panicked small-scale operations with little political clout. But the Naderite ideologues behind the law blame the "big toy companies" for any suggestions that its sweeping provisions might be a bit too much.

Senator Jim DeMint (R-S.C.) has a bill to revise the law. But he's a Republican, and I'm a pessimist. Nobody cares what happens to people no one has ever heard of. And my indifferent colleagues in the media will make sure no one ever hears about these regulatory casualties.

UPDATE: An alert reader notes that the MSM isn't the only problem: "Most conservative bloggers can't be bothered with the story because it has no dirt on Obama or any other top ten hate. Even Reason has done nothing at all."

UPDATE II: From Semicolon Blog:

My daughter works in a used bookstore. TODAY they pulled all the books from the children's section that had any kind of metal or plastic or toy-like attachment, spiral bindings, balls or things attached, board books, anything that might be targeted under this law, and they very quietly trashed them all. I say "very quietly" because the bookstore had a meeting with employees and told them to be careful not to start a panic. If anyone asked what they were doing they were told to say that they were "rearranging their inventory." No one was allowed to tell anyone about the new law, and no one was allowed to take any of the doomed-for-destruction books home or give them away.

UPDATE III: Welcome Instapundit and Andrew Sullivan readers. Check out the main blog page for more on this topic.

Around the web, February 12 - PointOfLaw Forum

  • California cities' and counties' is the only lead paint nuisance suit left standing [Calif. Civil Justice Blog]
  • Retailers in "panic" over court's last-minute reinstatement of phthalates ban [WSJ Law Blog; more CPSIA coverage]
  • Who needs skilled immigrants, anyway? Stimulus bill bars bailout beneficiaries from hiring international talent through H-1B visa program [Cowen, MargRev]
  • Home field advantage for state of Alabama and Jere Beasley against Sandoz in drug pricing lawsuit [AmLaw Daily]
  • Anti-vaccine figure Andrew Wakefield, accused of various impostures, wins Olbermann "Worst person in the world" award [Orac] But alas... [follow-up]
  • First post-Engle tobacco trial begins in Florida [Childs]

CPSIA, collateral and Sarbanes-Oxley - PointOfLaw Forum

What happens when a law like CPSIA suddenly renders valueless large stocks of inventory of children's products, amounting to tens of thousands or even millions of dollars at a given company? One result, notes manufacturer/activist Rick Woldenberg, will be to throw many businesses overnight into default on bank loans that are secured with inventory as collateral. Another will be to present publicly held companies with sudden issues of Sarbanes-Oxley exposure. Have their public disclosures of the losses prompt and comprehensive enough?

With yesterday's court decision making it unlawful to sell children's goods containing certain phthalates as well as lead after next Tuesday, the question for many retailers (and some manufacturers) will be what to do with inventories whose lead- or phthalate-containing status is unknown and that have not been tested to verify the substances' absence. A legislative bulletin from the Toy Industry Association says, "TIA has learned that some large national retailers - noting the stay on testing and certification and the difficulty in obtaining information on older inventory - are presuming that product already on shelves does not violate CPSIA requirements unless specifically advised otherwise by the Commission."

In other words, despite the $100,000-per-instance penalties on the books, they're going to hope they get lucky.

One of the better blog posts on the subject of the extraordinary burdens of CPSIA was Eric Husman's last month. A few excerpts:

...there are some details. You can't just not use lead or phthalates. You can't just point out that you are using undyed organic hemp and wooden toggles. No, you must prove that you are lead- and phthalate-free. How? Well, at $600-2400 per item, you ship it off to a certified testing lab. Plus, it's destructive testing, so kiss 1-12 samples of whatever it is goodbye. Also, you need to make sure that it is a representative lot, so no more repurposing of used clothes. Also, you need to provide this General Compliance Certificate (GCC) to anyone downstream who wants it. At any time. And be sure you can trace it by lot. Also, you may have to put up a bond in case they want to recall your product so that they know you can cover the cost of the recall.

Now, there's something you may not know about apparel manufacture (and you still won't know at the end of this paragraph because I'm simplifying the heck out of it). You start by developing about 20 styles and see what gets bought. Once buyers buy on the strength of the sample, you order the material and start sewing. The CPSIA testing has to be done on the final product (unit testing), not the inputs (component testing). So even though you are using the same organic cotton cloth and 5 different dyes and 3 different buttons, you can't get by with doing 8 tests (the cloth in 5 colors plus tests on each button). Nope, you have to do testing on 20 different styles x 5 different colors = 100 tests. Of which only 5 styles will ultimately go to market. That's a minimum of $60,000 just for the testing, and you haven't even started to sell yet.

By the way, size does not matter in the eyes of this law. Hanes T-shirts? Yes, they have to test. Grandpa's handmade toys that he sells on eBay? Yep, in fact eBay and Etsy are already noting that legal compliance is a requirement of their user terms of use. Also, manufacturing location does not matter - whether you make in or contract to China, Los Angeles, or Lancaster County, you have to test. ...One further thing: On February 10, if you don't have the GCC, you are selling illegally. ...

Other topics covered: the push by some advocates for phthalate testing on inventories produced before the law's effective date, the surprisingly large size of the manufacturing sector involved, and (inevitably) the leading role of "Saint Nader's" PIRG as well as the Natural Resources Defense Council.

"Incidentally," the piece concludes, "you might want to stock up on interesting children's clothing." A lot of it will be gone this time next year. (Part of CPSIA Blogging Day, more than 300 blogs participating).

P.S. Also on testing, Little Ida has a map of the rather sparse locations of available lead lab testing: many big states have no such facilities at all, which is going to make it an even bigger hassle for small producers to secure the requisite testing.

The President today signed into law H.R. 4040, the Consumer Product Safety Improvement Act of 2008. No bill signing ceremony.

This account highlights provisions that many in the business world believe will invite new waves of expensive litigation: "The bill also will create the first comprehensive publicly accessible consumer complaint database, give the CPSC new resources to protect the public, increase civil penalties that CPSC can assess against violators of CPSC laws, and protect whistleblowers who report product safety defects." Along with additional enforcement authority for state attorneys general, and you've got a full banquet table to serve the plaintiff's bar. The database, in particular, is a great place to attack companies' reputations and gin up a public scare.

Activists also hail the ban on phthalates, which as we've noted previously represents a major step toward establishing the precautionary principle as the new regulatory standard in the United States. (For more on that topic, see these posts.)


That's quite a claim for any piece of legislation.

The conference report for H.R. 4040, Consumer Product Safety Modernization Act, is already scheduled on today's House suspension calendar, so an overwhelming vote for passage is expected. It could go to the Senate for a Friday vote and observers expect the President to sign it into law.

The full, 183-page conference report has been posted as a .pdf at the NAM's blog,, here.

The conference report reflects quite a bit of business input to bring balance to the legislation, in particular ameliorating Senate language (S.2045S.2663) or adding provisions to protect from the wildest of litigation. But the self-styled consumer activist groups, symbiotes of the trial bar, are still extremely pleased at the victory over "special interests." (Joint news release here and Consumer article.) Meanwhile, the Hill reports that the U.S. Chamber opposes the bill because it increases litigation and rejects sound science, such as in provisions banning phthalates. (UPDATE: Chamber lettter here.) An ugly precedent, that's for sure, as Congress moves toward a European "precautionary principle."

Key provisions from a litigation standpoint:

Around the web, July 22 - PointOfLaw Forum

  • Worth keeping an eye on: "The Service Employees International Union and the Teamsters have sued six law firms (including Beasley Allen, Girardi and Keese, and Levin Fishbein) for their handling of the Vioxx settlement." [Beck & Herrmann]
  • Paul Selzer, last remaining defendant in Milberg Weiss/Lerach scandal, pleads guilty; Milberg says government knew of its plan to turn over 15 percent of fees from pending cases to Weiss [NYLJ]
  • Environmental Working Group and Fenton Communications lead campaign against plastic-softening bisphenol A and phthalates, and "trial lawyers sense a big payday" [Fortune]
  • Early Chemerinsky hires for UC Irvine law school confirm that it won't "look like Orange County" at all, ideologically [Bainbridge]
  • Dismissing more than 1,000 railroad asbestos suits for refiling elsewhere, West Virginia high court rejects argument that all Americans enjoy Constitutional right to take their disputes to WV courts [WV Record]
  • Hong Kong, which has hitherto done without antitrust laws, now is considering one [proposal in PDF, press release]

New areas for litigation - PointOfLaw Forum

As the American Association for Justice concludes its annual convention in Philadelphia, we bid farewell by taking a look at the list of the 66 litigation groups , highlighting the proposed groups that met.

  • Bisphenol - A/Phthalates Proposed Litigation Group
  • Motorcycles Proposed Litigation Group
  • Digitek Proposed Litigation Group Meeting
  • Chiropractic Malpractice Proposed Litigation Group
  • Walmart-Proposed Litigation Group
  • Nuva Ring Proposed Litigation Group
  • Chantix Proposed Litigation Group

So I rode my motorcycle over to Walmart to buy some nice, soft plastic toys and refill my stop-smoking prescription. Man, threw out my back....Is there a lawyer for me?

Meanwhile, fear sweeps the Triad - PointOfLaw Forum

That item below about bisphenol A from WFMY-TV in the Triad region of North Carolina caught our eye because it was so typically unbalanced -- all scare, no opposing view. Toxin! Baby bottle! Ovarian cancer! Environmental Working Group!

How typical? Well, there's this, also from WFMY-TV, "Dangerous Chemicals in Car Safety Seats."

Kernersville, NC -- As a mother of four, Brooke Marston knows how to keep her kids safe. But, harmful chemicals used to make her kid's car seats is something she has no experience.

"Chemicals leeching from the sun? We live where it is hot, so it's going to get hot in the car and I would have never expected that to be a problem with car seats."

And then there's this, from WFMY-TV.

"Like every new mom, Liz Sedgwick wants to make sure her baby is safe.

"We've been looking at childproofing and looking at some of the potential contaminates in the house and things like that trying to just be really aware."

But, she never thought to look at her plates which were passed down by her great aunt. Many of Liz's plates tested positive for lead. And she isn't alone."

And there's more, including phthalates and CFL bulbs.

One thing in common in all these WFMY stories is Dr. John Spangler, a professor of family medicine at Wake Forest University who's involved in tobacco prevention programs.

Well, if you've got a story about some potential health threat and you want to goose it for maximum impact, there's your formula: Find a scared mother, ignore any balance or opposite side, and call a medical source you can count on to elevate the fears. It's good for a splashy TV news story about, oh, once a month -- and that's just in the Triad region. Imagine the effect on potential litigants and jurors of this kind of reporting spread around the country.