NRDC v. U.S. Consumer Product Safety Commission

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baby teething on plastic toy

Phthalates—a class of harmful chemicals—are everywhere, from shower curtains to food containers to cosmetics. Perhaps worst of all, they’re also in children’s products, like plastic toys and teething rings. This is particularly concerning because phthalates are associated with severe and permanent reproductive and developmental damage in children. But because there is no federal labeling requirement for phthalates, parents have no practical way to ensure that their kids are safe.

Considering these serious health risks, in 2008 Congress permanently banned the use of three types of phthalates in all children’s products; it also imposed an interim ban on three additional types of phthalates in childcare articles and toys small enough to fit into a child’s mouth. Congress also directed the U.S. Consumer Product Safety Commission (CPSC) to determine whether to make those temporary bans permanent and whether to ban any additional phthalates to protect kids’ health.

Six years later, an independent advisory panel issued a peer-reviewed report recommending that the CPSC ban the use of five phthalates in children’s products: one already subject to the interim ban and four additional phthalates not originally addressed by Congress. Under the Consumer Product Safety Improvement Act, the CPSC had to issue a rule by January 2015 regarding whether it would permanently ban those (or any other) phthalates. A proposed rule banning those five phthalates from children’s products came in December 2014. But the CPSC has never finalized the rule, leaving children at risk.

In December 2016, NRDC, along with the Environmental Justice Health Alliance for Chemical Policy Reform and Breast Cancer Prevention Partners, sued the CPSC to compel the agency to comply with its statutory duty to issue a phthalates rule for children’s products.

In March 2017, the CPSC agreed to terms of a settlement through a consent decree that would require the agency to issue a final rule by October 18, 2017. But shortly thereafter, the National Association of Manufacturers (NAM)—representing chemical companies that produce phthalates as well as manufacturers of children’s products—moved to dismiss the case and the proposed consent decree. Both NRDC and the CPSC opposed NAM’s participation in the case, as well as the motion to dismiss.

In August 2017, the district court rejected NAM’s attempt to block the proposed consent decree. Recognizing the significant threat phthalates pose to pregnant women and children, the court stated that NRDC had standing on behalf of its members to hold the CPSC accountable to its duty to regulate these harmful chemicals. Under the consent decree, on October 18, 2017, the CPSC finalized its proposal to permanently ban five additional phthalates from children’s products. The final rule took effect on April 25, 2018.

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