A Consumer Product Safety Commission lawyer said yesterday it could take "several months at best" to reinstate the government's ban on Tris treated children's sleepwear, which was struck down Thursday by a federal judge in South Carolina.
Unless the judge's action is blocked pending appeal, garment makers and retailers nationwide would be free to resume sales of flame-retardant sleepwear treated with Tris, which has caused cancer in rats.
But there were indications yesterday that retailers would continue returning the goods to garment makers for refunds.
The safety commission, which banned the sale and ordered the re-purchase of Tris treated garments on April 7, had no comment yesterday on whether it would appeal the decision. It is expected to consider the matter next week.
But the Environmental Defense Fund, which sought the ban, said it would appeal and asked the garment industry not to dump Tris-treated nightwear back on the market. Garments are not labeled as containing Tris, EDF attorney Bob Rauch said, so consumers would not know whether sleepwear contained the chemical.
The ruling Thursday by U.S. District Court Judge Robert F. Chapman in Columbia, S.C., came after he concluded that the safety commission had denied fabric mills due process in banning the garments. He said the commission failed to follow procedural guidelines. Those guidelines, if begun now, would take months.
The safety commission had argued that Congress gave it the authority to ban the goods without going through a lengthy process of notices, hearings and administrative actions.
Springs Mills, of Lancaster, S.C., which said it faced $2 million in re-purchase of Tris goods, sought the judge's action.
"All the rulings are big-business oriented," said Louis Bates of Bates Nitewear, a small garment manufacturer in Greensboro, N.C. "The mills won it all, the chemical companies won it all. Everyone in this industry is living in complete fear."
From the start, the relatively small nightwear manufacturers have been caught between their customers and their suppliers: The retailers return AND HEIR SUPPLIERS: The retailers return goods for credit, but fabric suppliers were not initially required to give credit in turn, to the manufacturers.
Under federal court order, the safety commission told fabric mills to buy Tris nightwear back from the makers, setting the stage for the Springs Mills legal action. So sleepwear makers are back at the start - receiving returned Tris goods at great losses.
The manufacturers are particularly bitter because it was the federal government that ordered that children's sleepwear be made flame-retardant. Some were treated with Tris, which in recent years came under increasing concern as a cause of cancer.
When the National Cancer Institute found that it caused kidney cancer in rats, the safety commission banned Tris-treated children's sleepwear. But Chapman said the data on Tris were "unverified, uninterpreted and uncertain."
In his decision Chapman wrote, "It is evident from the methods used by CPSC in the present case that the commission does what it pleases with little concern for the restrictions or limitations placed upon it by the Congress or the Constitution."
"One company and one judge in South Carolina," said EDF's Rauch, "have dreated a potential disaster for consumers." He said the fund's great concern was over what becomes of the Tris-treated nightwear.
Fred Shippee, director of technical services for the American Apparel Manufacturers Association, said that because retailers have had the upper hand throughout the Tris controversy, the final decision "is going to be with the retailers."