United States: Toy Safety Regulation Should Be Left To The Federal Government

[This article originally appeared on Law360.com on June 23, 2015.]

On June 2, 2015, the Suffolk County Legislature became the latest county legislature in New York to pass a "toxic-free toys" act. About a week later, the New York City Council got in on the action and introduced a similar bill. Since the beginning of the year, five county legislatures in New York (Albany, Suffolk, Westchester, Dutchess and Onondaga) and the New York City Council have either passed, or are in the process of considering, laws to supposedly stem the flow of unsafe children's products onto local store shelves. The actions of these localities raise the fundamental legal and policy question: do local governments, such as county legislatures or town councils, have a legitimate role in regulating consumer products, a role typically reserved for the federal, and in some instances, state governments? Clearly, these local governments believe that they do, as do the consumer and environmental organizations behind the effort. Yet the answer is not as simple as it may seem.

Every so often, frequently in response to sensationalized media reports regarding the prevalence of allegedly unsafe products getting into the hands of children, counties decide to legislate on matters involving consumer product safety, and a trend, similar to the recent one in New York, begins. Unfortunately, these laws introduced and considered by localities tend to be more about politics and headlines than safety and have little effect on actually improving the safety of children's products.

Even if the motives of the counties and cities are well intentioned, such legislative efforts are simply misplaced; indeed they are unnecessary. Product safety regulation is best left to an impressively and empirically effective "system" of the federal government, consensus standards and the tort and insurance systems, complemented in recent years by the power of online and social media communications. I would argue even state government product safety requirements are often unnecessary, confusing and undermine the national market for the sale of consumer goods. This system is working; the consumer product safety system is strong — and getting stronger each and every year due to the ever-growing demand of the highly sensitized and safety conscious retail community and, of course, consumers themselves. As commissioner and former acting chairman Robert Adler of the U.S.Consumer Product Safety Commission pointed out at the Senate Commerce Committee hearing on CPSC oversight, there has been a "dramatic drop" in death and injuries to children from consumer products over recent years.

Local attempts to regulate the safety of children's products tend to raise more questions than answers, causing confusion among both consumers and industry alike. By way of example, earlier this year, on Jan. 7, the executive of Albany County, New York, signed into law "Local Law J," known as the "Toxic-Free Toys Act," the most far-reaching local children's product safety ordinance in recent years (perhaps since multiple cities and counties began prohibiting bisphenol-A, commonly referred to as "BPA," in baby bottles and sippy cups five or so years ago). The Albany County safe toys law was presumably introduced in response to a report issued two months earlier by "Clean & Healthy New York" and the "New York League of Conservation Voters," which claimed to have found six heavy metals in children's products, such as dolls, hair accessories and jewelry. Notwithstanding the fact that the results of that report were vigorously challenged by industry groups as flawed, Albany County enacted the sweeping law.

Specifically, the Albany County law prohibits the sale of "children's products and apparel," that contain the following seven chemicals: benzene, lead, mercury, antimony, arsenic, cadmium and cobalt. The law gives Albany County's Department of Health the power to promulgate regulations in order to implement the law as well as enforcement authority.

Presumably, those regulations will provide manufacturers and retailers with additional guidance regarding the scope of the products covered by the law, the levels at which the listed chemicals are banned and how those levels are measured. Violators of the law are subject to monetary civil penalties.

The consequences of this law are yet to be seen. However, in the interim, the breadth and vagueness of the law raises significant policy questions and issues. How will the county implement the law? What products will be covered? How will the county go about testing children's products to determine if they comply with the law? Where will the resources to enforce the law come from? What sort of economic effect and impact will this law have on local businesses if they will not be able to sell the same products as their counterparts in neighboring counties? Further, are county scientists equipped to set, evaluate and administer such a program? The answer is, simply, no. In fact, some Albany County officials have admitted that the mere three machines the county has can only detect lead.

Moreover, from a legal perspective, Local Law J raises serious preemption issues. In the case of the Albany County law, its provisions appear to contradict the lead paint and substrate limits imposed by the federal Consumer Product Safety Improvement Act of 2008 (CPSIA) as well as limits for heavy metals in children's toys as imposed by the mandatory federal toy safety standard ASTM F963 adopted as law in the CPSIA. If such conflicts exist, which law governs and how is industry supposed to respond?

Unsurprisingly, in the case of Albany County, members of the consumer products industry led by groups such as the Toy Industry Association and American Apparel & Footwear Association, have already challenged the law in federal court on preemption grounds. The plaintiff, "Safe to Play Coalition," has asserted in its lawsuit against Albany County that Congress enacted both the Consumer Product Safety Act and Federal Hazardous Substances Act to ensure nationwide, uniform standards govern the safety of children's products, as opposed to an uncertain and inefficient patchwork of state and local regulations.

This litigation has been stayed at the behest of the parties until Albany County completes a draft of the regulations implementing the law. In any event, the county has agreed not to enforce the law (scheduled to take effect in January 2016) or any regulations implemented pursuant to it until six months after any court decision or order on the preemption issue (or an appellate order).

The good news is despite such local efforts to regulate these products, the consumer products regulatory regime and safety system, enacted by Congress and implemented by federal agencies such as the Consumer Product Safety Commission (and supplemented by the nongovernmental consensus standards process noted above) is working. The current system in place to ensure the safety of children's products includes mandatory testing by independent, third party labs, stringent limits on chemicals such as lead and phthalates and a robust toy safety standard mentioned above that addresses the use of heavy metals in children's toys. In fact, according to the CPSC, in fiscal year 2014, toy recalls remained low, with 30 toy recalls as compared to 172 in fiscal year 2008.

Local governments should resist the urge to regulate the safety of children's products. The county laws discussed above, such as the Albany County "toxic-free toys" act, are just the latest examples of why ensuring and enhancing the safety of these products is best left to the federal government.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Matthew Cohen
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.