Federal Court Sends Phthalate Rule Back to CPSC

March 8, 2021 | The Toy Association is alerting toy manufacturers that the Fifth Circuit Court of Appeals has remanded the Consumer Product Safety Commission (CPSC) Phthalate Rule (16CFR 1307) to the commission in response to a suit by a coalition of manufacturing groups.

The decision was procedural and based on what the court determined to be a violation by CPSC of the Administrative Procedures Act, which requires the commission to solicit input from the public on proposed regulations and respond to public comments in issuing its regulations. The agency changed the scientific justification for the Phthalate Rule (16CFR 1307) midway through the rulemaking process but did not provide adequate opportunity for public comment after doing so. The court did not rule on the scientific merits of the phthalate rule.

Members should be aware that no substantive changes to the rule, which limits the concentration of eight members of the phthalate family of chemical compounds (including di-2-ethylhexyl phthalate, dibutyl phthalate, benzyl butyl phthalate, di-n-hexyl phthalate, di-n-pentyl phthalate, dicyclohexyl phthalate, diisobutyl phthalate, and diisononyl phthalate (DINP)) to no more than 0.1 percent each, are anticipated. The rule currently remains in full force.

The Toy Association will keep members updated on the process of reopening the rule for additional comment as well as the related EPA risk evaluation of DINP and di-isodecyl phthalate (DIDP), which is expected to take place in late 2021 or early 2022.

Questions may be directed to Alan Kaufman, senior vice president of technical affairs at The Toy Association.