Toymakers File Court Challenge Against Oregon’s Latest Rules Under State’s Non-Toxic Children Act

The makers of children’s products have asked a federal judge to suspend provisions of Oregon’s Toxic-Free Kids Act that prohibit certain chemicals found in certain toys sold in the state.

The lawsuit argues that the state cannot anticipate federal law, which already regulates chemicals.

He names the Oregon attorney general and the director of the Oregon Health Authority as defendants. The complaint was brought by The Toy Association Inc., American Apparel & Footwear Association Inc., Halloween Industry Association Inc. and Juvenile Products Manufacturers Association Inc.

Manufacturers are challenging a rule passed last year as part of the Oregon Toxic-Free Kids Act, passed by the legislature in 2015.

The new rule requires manufacturers from this year to remove or replace any of the substances on a state list of “high priority chemicals of concern” from three product types: children’s cosmetics, any toy ” to mouth ”and toys for children under 3 years old. .

The Toxic-Free Kids Act ordered the Oregon Health Authority to list high-priority chemicals of concern to children’s health in children’s products. Manufacturers must provide a notice to the state every two years that identifies the amounts of high-priority chemicals in each part of a children’s product that they are proposing to sell or are proposing to sell in Oregon. The list of chemicals includes formaldehyde, cobalt, styrene, and toluene.

James T. McDermott, an attorney for manufacturers, argued in the lawsuit that federal laws have governed the sale of toys and other consumer products containing potentially toxic chemicals for more than 60 years.

Federal laws prohibit the sale of children’s products only when a chemical in this group is “accessible” to a child, which means that it presents a real danger to a child in one way or another, McDermott wrote.

Under the state’s latest rule, manufacturers should test every “high priority” chemical in every “component” of a toy, not just those accessible to a child, he wrote. Oregon’s new rule would require more testing and reporting to the state on chemicals that do not pose a risk to children, he wrote.

“This difference, and the resulting burden on manufacturers only for toys sold in Oregon, destroys the ‘uniform’ system of identification, testing and prohibition erected by the complex, interwoven and detailed system of laws. , federal rules and standards. Says the trial.

Ed Desmond, executive vice president of The Toy Association Inc., wrote to the court that some manufacturers also might not be able to “withdraw products intended only for Oregon” and would then have “reduced ability to distribute products in interstate commerce ”. The association represents 850 toy manufacturers, retailers, inventors and designers.

Manufacturing organizations on Tuesday asked U.S. District Judge Michael H. Simon to issue a temporary restraining order to prevent the Oregon Health Authority from taking enforcement action or imposing sanctions on any company until that the court can resolve the broader issues of the case.

Officials in Oregon countered that the manufacturers had exaggerated their claims of hardship and failed to exhaust all state administrative proceedings or a possible state legal challenge.

“After their own failure to act quickly in bringing this petition, the plaintiffs cannot establish that they will suffer irreparable harm unless the court grants them an emergency injunction,” wrote lawyer Megan K. Houlihan. on behalf of the state.

Houlihan also noted that manufacturers with less than $ 5 million in gross annual sales worldwide are exempt from the new state rule and that other manufacturers can apply for waivers if they can show that the disposal chemicals “is not financially or technically feasible”.

State officials also argue that authorities in Oregon can impose regulations on certain toys that go beyond federal standards.

The judge did not grant a temporary restraining order on Tuesday, but made it clear he would hear the case in late March, before any enforcement action could be taken against the manufacturers who brought the lawsuit.

“The key issue here is whether parts of the law or the implementing regulations are preempted by federal law,” Simon said. “I don’t think there is yet any evidence of a substantial likelihood of irreparable harm by the time of a trial on the merits.”

Simon has set a hearing for March 24 for a preliminary injunction or trial.

–Maxine Bernstein

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