Sunday, March 8, 2009


More on Phthalates

Below is the law on enforcement of the phthalate regulation on selling products with phthalates in them (certification is another aspect). Phthalates are a chemical that softens plastics. There seems to be no evidence whatsoever that it causes damage in anyone but pregnant women (and that evidence is all from rats, I think), judging from what *proponents* of the regulation say. Opponents might even doubt that.
  1. Guidance on the Consumer Product Safety Improvement Act (CPSIA) for Small Businesses, Resellers, Crafters and Charities.
  2. National Resources Defense Council v. US Consumer Product Safety Commmission, 08 Civ. 10507, SD NY, Gardephe. J.
  3. "The Case Against Phthalates in Children's Toys", Huffington Post, (March 24, 2008).
  4. Human Breast Milk Contamination with Phthalates and Alterations of Endogenous Reproductive Hormones in Infants Three Months of Age , Katharina M. Main et al. , Environmental Health Perspectives Volume 114, Number 2, February 2006.
  6. Time’s Toy Reporting Scares Parents Trevor Butterworth, December 13, 2006.
  7. Section 108: Products Containing Certain Phthalates, CPSC FAQ.
  8. Whole Soy Story: The Dark Side of America's Favorite Health Food
  9. A National Review article that says pre-1985 children's books are illegal because of lead in the ink.
  10. National Bankruptcy Day ,, Jan 2nd, 2009.

Here are the ENFORCEMENT sections:

SEC. 19. [15 U.S.C. § 2068]
(a) It shall be unlawful for any person to— (1) sell, offer for sale, manufacture for sale, distribute in commerce, or import into the United States any consumer product, or other product or substance that is regulated under this Act or any other Act enforced by the Commission, that is not in conformity with an applicable consumer product safety rule under this Act, or any similar rule, regulation, standard, or ban under any other Act enforced by the Commission;

Meaning: You can't sell a toy with phthalates in it.

SEC. 20. [15 U.S.C.§ 2069] {penalties increased; see 69 FR 68884}
(a) (1) Any person who knowingly violates section 19 [15 U.S.C. § 2068] of this Act shall be subject to a civil penalty not to exceed $100,000, for each such violation....

(2) The second sentence of paragraph (1) of this subsection shall not apply to violations of paragraph (1) or (2) of section 19(a)—
(A) if the person who violated such paragraphs is not the manufacturer or private labeler or a distributor of the products involved, and
(B) if such person did not have either (i) actual knowledge that his distribution or sale of the product violated such paragraphs or (ii) notice from the Commission that such distribution or sale would be a violation of such paragraphs

Meaning: If you "knowingly" sell a toy with phthalates in it, you can be fined up to $100,000. Paragraph (2) says, by implication, that you can be fined even if you are a retailer who did not "have actual knowledge" that you were violating the law. It's unclear to me whether you're in trouble if you sell a toy with phthalates in it when you didn't know it had phthalates in it. I think you *are* in trouble, from what I could tell from the FAQs. Someone who knows criminal law would know, from the language here.

SEC. 21. [15 U.S.C. § 2070]
(a) Violation of section 19 of this Act is punishable by— (1) imprisonment for not more than 5 years for a knowing and willful violation of that section;

Meaning: If you know a toy has phthalates and you sell it anyway, you might go to jail for 5 years, if the U.S. Attorney doesn't like you. This applies even if you only sell one item, and you're a charity shop.

SEC. 24. [15 U.S.C. § 2073]
(a) IN GENERAL.--Any interested person (including any individual or nonprofit, business, or other entity) may bring an action in any United States district court for the district in which the defendant is found or transacts business to enforce a consumer product safety rule or an order under section 15 [15 U.S.C. § 2064], and to obtain appropriate injunctive relief. Not less than thirty days prior to the commencement of such action, such interested person shall give notice by registered mail to the Commission, to the Attorney General, and to the person against whom such action is directed. Such notice shall state the nature of the alleged violation of any such standard or order, the relief to be requested, and the court in which the action will be brought. No separate suit shall be brought under this section if at the time the suit is brought the same alleged violation is the subject of a pending civil or criminal action by the United States under this Act. In any action under this section the court may in the interest of justice award the costs of suit, including reasonable attorneys’ fees (determined in accordance with section 11(f)) [15 U.S.C. §2060(f)] and reasonable expert witnesses’ fees.

Meaning: Even if the U.S. Attorney doesn't go after you because it would be ridiculous to-- in fact, ONLY if the case is too stupid for them to prosecute--- a predatory law firm could do it for profit, because they get "attorneys' fees", which courts are very generous about, judges being members of the lawyer class and more sympathetic to them than to ordinary people, or, certainly, to companies.

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