PPB January 2016

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Unsurprisingly, in the case of Albany
County, members of the consumer products
industry led by groups such as the Toy
Industry Association and American Apparel
& Footwear Association, have already chal-
lenged the law in federal court on preemption
grounds. The plaintiff, “Safe to Play
Coalition,” has asserted in its lawsuit against
Albany County that Congress enacted both
the Consumer Product Safety Act and
Federal Hazardous Substances Act to ensure
nationwide, uniform standards govern the
safety of children’s products, as opposed to an
uncertain and inefficient patchwork of state
and local regulations.
This litigation has been stayed at the
behest of the parties until Albany County
completes a draft of the regulations imple-
menting the law. In any event, the county has
agreed not to enforce the law (scheduled to
take effect this month) or any regulations
implemented pursuant to it until six months
after any court decision or order on the pre-
emption issue (or an appellate order).
The good news is despite such local
efforts to regulate these products, the con-
sumer products regulatory regime and safety
system, enacted by Congress and implement-
ed by federal agencies such as the Consumer
Product Safety Commission (and supple-
mented by the nongovernmental consensus
standards process noted above) is working.
The current system in place to ensure the
safety of children’s products includes manda-
tory testing by independent, third party labs,
stringent limits on chemicals such as lead and
phthalates, and a robust toy safety standard
that addresses the use of heavy metals in chil-
dren's toys. In fact, according to the CPSC,
in fiscal year 2014, toy recalls remained low,
with 30 toy recalls as compared to 172 in fis-
cal year 2008.
Local governments should resist the urge
to regulate the safety of children’s products.
The county laws discussed here, such as the
Albany County “toxic-free toys” act, are just
the latest examples of why ensuring and
enhancing the safety of these products is best
left to the federal government.
The opinions expressed are those of the author
and do not necessarily reflect the views of the
firm or its clients. This article is for general
information purposes and is not intended to be
and should not be taken as legal advice.
Matthew Cohen is an associate
in the Washington, D.C., office
of Mintz Levin Cohn Ferris
Glovsky and Popec PC.
The current system in place to ensure the safety of children’s products
includes mandatory testing by independent, third party labs, stringent limits
on chemicals such as lead and phthalates, and a robust toy safety standard
that addresses the use of heavy metals in children's toys. “
”
76 • PPB • JANUARY 2016 THINK
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