The Fourth U.S. Circuit Court of Appeals in Richmond refused yesterday to reinstate the government's nationwide ban on children's sleepwear treated with Tris, a chemical fire retardant suspected of causing cancer.
A U.S. District Court Judge in South Carolina had ordered the U.S. Consumer Product Safety Commission to stop enforcement of the ban.
The government asked for a stay of the court order, but the court of appeals refused to grant it.
S. John Byington, chairman of the product safety commission, said the body would meet on Monday to decide on further action.
"The commission fully intends to stop the sale of these things (Tristreated sleepwear)," he said.
Meanwhile, the commission and the Environmental Defense Fund, a private group that has pressed for the ban on the treated sleepwear, released data indicating that large quantities of the garments are still stocked in stores.
Byington said that in a recent survey conducted by commission field offices across the nation, 17 or 18 per cent of 45 stores checked were found to be selling a children's sleepwear treated with the chemical. The names of the stores were not immediately available.
Robert Rauch, a lawyer with the Environmental Defense Fund, said the fund found the garments available during its own survey in three cities, including Washington.
The product safety commission issued its ban on Tris-treated children's sleepwear on April 7. The ban applied to an estimated 18 million size 0 to 14 garments in commercial pipelines and to about 7 million square yards of Tris-treated uncut fabric intended for children's sleepwear.
On May 23, U.S. District Court Judge Robert F. Chapman, sitting in South Carolina, blocked the government from enforcing the ban against Springs Mills, Inc., a fabric mill that had sought an injunction against the government.
The judge said the commission had failed to follow its own rules and procedures in banning Tris and ordering retailers, garment manufacturers and textile mills to repurchase unwashed Tris goods.
Spring Mills had estimated that such repurchases would cost $2 million. A full trial was set for June 13, and after the trial, according to Byington. Chapman said "he had effectively ordered us to cease all enforcement of the ban."
Byington said last night that while the appeals court refused to stay Judge Chapman's order, it did not foreclose all means of preventing the sale of Tris-treated sleepwear.
He said the South Carolina judge's order, which remains in force, prevents the commission from enforcing a "regulation" against Tris under the Hazardous Substances Act.
But, he said, the commission apparently can move against the sale of Tris in individual cases under an "interpretation," which would in each case be subject to full legal challenge.
In another development, the Environmental Defense Fund and the commission settled a suit in which EDF had sought to obtain a regulation requiring repurchase of already washed Tris-treated garments. The commission agreed to issue a statement indicating that even after laundering the garment might not be free of all risks.