February 7, 2009

California Enforcement of CPSIA

For those of you within the jurisdiction of the California Attorney General Jerry Brown (who may be running for Governor of this state) it is important to point out that the AG did not agree with the CPSC's decision (based upon its reading and interpretation of Congress' intent) that only consumer products manufactured after February 10, 2009 were subject to the phthalates ban. In a letter to the CPSC dated December 3, 2008 in citing A.B. 1108 the AG's office stated:

"As of January 1, 2009, it will be illegal to sell, distribute, or manufacture toys and child care articles in California with greater than 0.1 percent of six specified phthalates, regardless of when or where the products were manufactured. The effective date of the federal CPSIA does not affect implementation of California’s phthalate restrictions. Because A.B. 1108 will have been on the books for over 14 months before its phthalate limits take effect, we believe that industry has had sufficient time to prepare to comply with the requirements that take effect on January 1, 2009. The Attorney General, and other public enforcers, can and will enforce California's phthalate ban after that date."

As it turns out a federal court made that point somewhat moot in agreeing that the phthalates ban can be retroactive.

What is more disconcerting however is that the CPSIA also gives state attorney generals some enforcement power under the new law. The extent of that authority and the discretion that will be used by the AG's in accordance with the CPSC's own eventual discretion will be very interesting indeed. One can only assume that with Proposition 65 in California and a host of other safety and consumer oriented statutes we can only assume that California will be more aggressive on this front than most other states. Of course then there is the 2009 budget crisis which at this point may furlough the entire AG's office. At least for the time being.

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