CPSC Settles with NRDC Regarding the Restriction of Phthalates in Children’s Toys

The U.S. Consumer Product Safety Commission (CPSC) and the Natural Resources Defense Council (NRDC) have reached an agreement in principle for the federal agency to issue a rule banning five chemicals, known as phthalates, that may cause reproductive harm from their exposure in children’s products. Those five phthalates are: diisobutyl phthalate (DIBP), di-n-pentyl phthalate (DnPP), di-n-hexyl phthalate (DnHP), dicyclohexyl phthalate (DCHP); and diisononyl phthalate (DINP). While the CPSC reached a tentative agreement with the NRDC on the timetable for issuing a rule, the contents of the final rule will be made by a vote of the CPSC Commission.

Phthalates are a class of chemicals used to soften plastics and are commonly found in children’s toys. Three phthalates, di-(2-ethylhexly) phthalate (DEHP), dibutyl phthalate (DBP), and benzyl butyl phthalate (BBP), were banned from use in toys and other children’s products in concentrations above 0.1 percent in 2009 under the Consumer Product Safety Improvement Act, and three more were banned on an interim basis based on the same concentration limit the same day. The 2009 interim banned substances include diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), and di-n-octyl phthalate (DnOP).

The CPSC published a proposed rule in December 2014 and was supposed to issue a final order within 180 days to continue an interim ban on the five phthalates, DIBP, DnPP, DnHP, DCHP, and DINP, within children’s toys, however, the 180-day period stretched to 950 days as of last week.

The NRDC, along with the Environmental Justice Health Alliance for Chemical Policy Reform and the Breast Cancer Fund, filed a complaint in December of 2016 seeking injunctive and declaratory relief to force the CPSC to regulate the five phthalates in children’s products.

A consent decree is expected to be finalized within the month.

The case is Natural Resources Defense Council et al. v. U.S. Consumer Product Safety Commission, case number 1:16-cv-09401, filed in the U.S. District Court for the Southern District of New York.

Court to Allow California to List Glyphosate as Possible Cancer Threat under Prop. 65

In September 2015 the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) announced plans to list the pesticide glyphosate as a possible cancer threat under Proposition 65. OEHHA made the decision to list glyphosate following the International Agency for Research on Cancer March 2015 finding that glyphosate is “probably carcinogenic to humans.” Monsanto sued OEHAA in January 2016, in an effort to block the listing. Global sales of glyphosate were about $7.8 billion in 2014, as a carcinogen under Proposition 65. It is the main ingredient in Monsanto’s Roundup.

A tentative ruling by California Superior Court Judge Kristi Culver Kapetan states that the court intends to dismiss Monsanto’s lawsuit. In the lawsuit, Monsanto claimed that the listing was unconstitutional because OEHHA delegated law-making authority “to an unelected and non-transparent foreign body that is not under the oversight or control of any federal or state government entity,” and because the labor code process violated the due process clauses of the California and U.S. constitutions. In its motion to dismiss the lawsuit, California argued that IARC’s scientific determinations are “the gold standard in carcinogen identification.” The court found that Monsanto’s petition failed to state facts sufficient to constitute a cause of action.

Judge Kapetan will be issuing a formal decision soon.