PPB January 2016

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the hands of children, counties decide to
legislate on matters involving consumer
product safety and a trend, similar to the
recent one in New York, begins.
Unfortunately, these laws introduced and
considered by localities tend to be more
about politics and headlines than safety and
have little effect on actually improving the
safety of children’s products.
Even if the motives of the counties and
cities are well intentioned, such legislative
efforts are simply misplaced; indeed they are
unnecessary. Product safety regulation is best
left to an impressively and empirically effec-
tive “system” of the federal government, con-
sensus standards and the tort and insurance
systems, complemented in recent years by the
power of online and social media communi-
cations. I would argue even state government
product safety requirements are often unnec-
essary, confusing and undermine the national
market for the sale of consumer goods. This
system is working; the consumer product
safety system is strong—and getting stronger
each and every year due to the ever-growing
demand of the highly sensitized and safety
conscious retail community and, of course,
consumers themselves. As Robert Adler,
commissioner and former acting chairman of
the U.S. Consumer Product Safety
Commission, pointed out at the Senate
Commerce Committee hearing on CPSC
oversight, there has been a dramatic drop in
death and injuries to children from consumer
products over recent years.
Local attempts to regulate the safety of
children's products tend to raise more ques-
tions than answers, causing confusion among
both consumers and industry alike. By way of
example, in January 2015 the executive of
Albany County, New York, signed into law
Local Law J, known as the Toxic-Free Toys
Act, the most far-reaching local children’s
product safety ordinance in recent years (per-
haps since multiple cities and counties began
prohibiting bisphenol-A, commonly referred
to as BPA, in baby bottles and sippy cups five
or so years ago). The Albany County safe toys
law was presumably introduced in response to
a report issued two months earlier by Clean
& Healthy New York and the New York
League of Conservation Voters, which
claimed to have found six heavy metals in
children’s products, such as dolls, hair acces-
sories and jewelry. Notwithstanding
the fact that the results of that report were
vigorously challenged by industry groups
as flawed, Albany County enacted the sweep-
ing law.
Specifically, the Albany County law
prohibits the sale of “children's products
and apparel,” that contain the following
seven chemicals: benzene, lead, mercury,
antimony, arsenic, cadmium and cobalt. The
law gives Albany County's Department of
Health the power to promulgate regulations
in order to implement the law as well as
enforcement authority.
Presumably, those regulations will provide
manufacturers and retailers with additional
guidance regarding the scope of the products
covered by the law, the levels at which the
listed chemicals are banned and how those
levels are measured. Violators of the law are
subject to monetary civil penalties.
The consequences of this law are yet to
be seen. However, in the interim, the breadth
and vagueness of the law raises significant
policy questions and issues. How will the
county implement the law? What products
will be covered? How will the county go
about testing children’s products to determine
if they comply with the law? Where will the
resources to enforce the law come from?
What sort of economic effect and impact will
this law have on local businesses if they will
not be able to sell the same products as their
counterparts in neighboring counties?
Further, are county scientists equipped to set,
evaluate and administer such a program? The
answer is, simply, no. In fact, some Albany
County officials have admitted that the mere
three machines the county has can only
detect lead.
Moreover, from a legal perspective, Local
Law J raises serious preemption issues. In the
case of the Albany County law, its provisions
appear to contradict the lead paint and sub-
strate limits imposed by the federal
Consumer Product Safety Improvement Act
of 2008 (CPSIA) as well as limits for heavy
metals in children's toys as imposed by the
mandatory federal toy safety standard ASTM
F963 adopted as law in the CPSIA. If such
conflicts exist, which law governs and how is
industry supposed to respond?
74 • PPB • JANUARY 2016 THINK
Live Education At Expo
PPAI is offering seven free edu-
cation sessions focusing on
product responsibility during
The PPAI Expo, January 10-14,
at the Mandalay Bay Convention
Center in Las Vegas. Find ses-
sion details and register for the
show at
Sunday, January 10, 2016
Prop 65 And State Regulations
3:10 – 4:10 pm
Speaker: Andrew Farhat
Undue Influence Training
4:30 – 5:30 pm
Speaker: Tim Brown, MAS
Monday, January 11, 2016
Product Responsibility: Best
Practice By Product Category
8 – 9 am
Speakers: Anne Lardner-Stone,
Andrew Farhat
Apparel Decorators’ Responsibility
Under CPSIA
9:20 – 10:20 am
Speakers: Andrew Farhat, Mary
Poissant, Tim Brown, MAS
What You Must Know For Selling
Promotional Technology Products
10:40 – 11:40 am
Speakers: Anne Stone, LaTanya
Schwalb
Wednesday, January 13, 2016
How To Use The PPAI Corporate
Responsibility Website To Your
Advantage
9 – 10 am
Speaker: Tim Brown, MAS
Thursday, January 14, 2016
How To Communicate Compliance
With End Buyers
9 – 10 am
Speaker: Tim Brown, MAS