Some Toys With Banned Plastics Will Stay on Market

The federal government has banned the use of phthalates in children's products such as toys and pacifiers.
The federal government has banned the use of phthalates in children's products such as toys and pacifiers. (By Larry Morris -- The Washington Post)
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By Annys Shin
Washington Post Staff Writer
Wednesday, November 19, 2008

A new federal ban on the use of the controversial chemical phthalate in teethers, pacifiers and other children's products won't apply to goods already in warehouses or on store shelves, federal safety regulators said yesterday.

The decision, issued by Consumer Product Safety Commission general counsel Cheryl Falvey, means it will be illegal to sell products made after the ban takes effect Feb. 10 that contain certain types of phthalates, chemicals used in soft plastic that have been linked to reproductive problems.

Any products made before that date will still be legal to sell, even after the ban is in place.

The ban, which was passed in August as part of a landmark product safety law, is supposed to remain in effect until a panel finishes a scientific review of phthalates. Backed by Democratic California Sens. Dianne Feinstein and Barbara Boxer, it was modeled on a law in their state that goes into effect in January.

Consumer advocates and several Hill staffers who worked on the provision say the CPSC's decision violates the intent of the law.

"That obviously is not what was intended," said Diana Zuckerman, president of the National Research Center for Women & Families, a Washington advocacy group.

CPSC spokeswoman Julie Vallese said that the way the law is written, technically the ban must be prospective.

Consumer advocates also say the decision will cause confusion for consumers.

"How will parents know whether the rubber ducky they're buying was made today and not in March?'" said Rachel Weintraub, director of product safety for Consumer Federation of America.

Vallese said consumers can call a manufacturer to find out when a product was made.

By contrast, the decision came as a relief to makers of children's products, large and small, who faced the prospect of having to test products and components at great expense. Testing a product for phthalates can cost thousands of dollars, said lawyers and consultants advising companies on how to comply with the law.

"I'm glad to hear they are grandfathering product already in place because there is dispute about whether those phthalates are harmful, and what are they going to replace them with," said Kathleen McHugh, president of the American Specialty Toy Retailing Association, which also represents small toy makers.

Toy Industry Association president Carter Keithley also praised the CPSC for its "careful analysis" of the law.

Businesses still have plenty of questions about how to meet the law's other requirements, such as the new limits on lead and mandatory testing and certification, which pose myriad practical and financial challenges.

Despite a series of public meetings hosted by the CPSC for businesses, companies in search of more specific guidance say they've largely been left in the dark.

For instance, does a business have to perform lead tests on shopping cart seats that are primarily used by small children?

"What's the likelihood a kid is going to be sucking on the seat?" McHugh said. "That's where we've gone so overboard."

Or take a company that makes harmful chemicals that already carry a warning label. "Are you supposed to kill a bunch of white rats so you can prove your label is accurate?" said Mike Gidding, a former CPSC official who now works with companies. "It sure would be nice to be able to call someone at CPSC and say, 'What's the answer?' "

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