California Says State Ban on Phthalates Began on January 1, Not Preempted By CPSIA

January 27, 2009

The California Department of Justice (DOJ) has sent a letter to the Consumer Product Safety Commission (CPSC) stating that its state law banning phthalates in certain children’s articles, which took effect January 1, 2009, preempts the ban contained in the Consumer Product Safety Improvement Act (CPSIA) scheduled to take effect February 10, 2009.

Although both the state and federal bans apply the same concentration limit (0.1 percent) on phthalates in certain children’s articles, California’s DOJ is concerned that some CPSC communications may lead manufactures, traders or retailers to mistakenly conclude that there will be no bans effective anywhere in the U.S. on January 1, 2009.  The letter emphasizes that toys and child care articles containing excessive levels of phthalates cannot be sold or distributed in California after January 1, 2009, no matter when or where they were manufactured.

The letter also states that the California state ban is in no way preempted by the CPSIA ban, as both contain the same concentration limit. California’s ban also applies to a wider array of products than the federal ban and the CPSC cannot preempt state bans on products for which it has issued no regulations.

In related news, it is unclear whether the CPSC will push back the effective date for the phthalates ban in light of the Obama Administration’s memo requesting a moratorium on all pending final rules published in the Federal Register.  There is speculation that the CPSC will go forward with the February 10, 2009 implementation date because the CPSC’s status as an independent agency exempts it from the memorandum and the nature of the phthalates ban as a health and safety standard does not require review under the memo.