An industry coalition of retailer associations has filed a lawsuit to to strike down an Albany County measure that prohibits some chemicals in children’s clothing and toys, and to continue to abide by federal laws that are already in place.
The coalition – Safe to Play – states in its Federal Court complaint that Congress has already established safety legislation for children’s products several years ago explicitly addressing this matter, they believe that the original statutes circumvent filing unnecessary piecemeal amendments of national and local laws.
Safe to Play includes retailers, manufacturers and other commercial enterprises that represent clothing and toy companies that sell billions of dollars in merchandise annually.
“The law of Albany [County] has enacted is precisely the kind of law Congress wanted to preempt,” said the coalition during their filing.
Albany County’s measure also infringes upon the supremacy clause of the Constitution; therefore – says the coalition – it should be “null and void.”
The measure was enacted by Albany County, signed into law last January, and is set to take effect in January 2016.
Specifically, the new law would ban the sale of children’s products and clothing that containing any level of benzene, lead, mercury, antimony, arsenic, cadmium and cobalt, no matter how low. If the law is violated, any manufacturer must pay a $500 fine for the first offense and $1,000 fine for subsequent
County Executive Daniel McCoy said that with the signing of the law, the named seven chemicals are known “to have harmful effects, including damaging blood and organs, causing cancer and impeding their [children’s] cognitive and physical developments.” McCoy placed the County Health Department in charge of enforcing the law. he coalition names Albany County, the State of New York, McCoy and Health Commissioner Christine Compton as defendants in their complaint.
Safe to Play is made up of the following organizations: the American Apparel and Footwear Association, Association, Halloween Industry Association, Juvenile Products Manufacturers Association and Toy Industry Association. These groups are representative of several hundred companies which manufacture, import and distribute children’s clothing and products.
The plaintiffs argue that the Federal Hazardous Substances Act, which was adopted in 1960, and the Consumer Product Safety Act, adopted in 1972, supersede any subsequent law enacted by Albany County regarding chemical levels in children’s clothing and products.
The Consumer Product Safety Act helped to form the Consumer Product Safety Commission, and is described by the coalition as “an independent, expert federal regulatory commission” that has a duty to protect the community from consumer products that could potentially cause death or injury.
According to Safe to Play, the Commission is already implementing the security objectives of the two acts, ensuring “nationwide uniformity in the standards governing the sale of products containing hazardous chemicals.”
While the previous laws preempt other similar laws, the group says that Albany County legislation is not identical, as it “imposes a blanket ban on children’s products containing any level of the seven specified chemicals,” while federal laws prohibit products containing “an accessible and harmful amount of hazardous chemical,” said the group.
With the latter provision, the Consumer Product Safety Commission (CPSC) was instructed by Congress to prohibit children’s consumer products only when “’unreasonable’ safety risks’ (50) were presented, according to the coalition. “In response, CPSC has adopted a flexible, measured, balanced approach that fully ensures the safety of children’s products.” The group further stated that its members “will suffer irreparable harm absent an injunction.”
Further, Albany County contends that losses in sales and market share will be realized in the children’s products industry if the coalition members are not in accordance with the Albany law, and “will be forced to undertake significant and costly alterations” in the research, testing, manufacturing and distribution of the products.
In addition to temporary and permanent injunctions, the coalition is requesting that costs and legal fees be reimbursed. Safe to Play is represented by Anthony Boccanfuso of Arnold & Porter in Manhattan.
On April 20, a spokesman for Albany County Executive McCoy said that the county knew about the
complaint but that the county has not yet been officially notified. Mary Rozak, director of Communications for Albany County, said “The county is reviewing its options.”
In January, when McCoy signed the measure into law in January, he admitted that enforcing it “presents certain challenges,” including future budget issues. However, “we can’t take baby steps in addressing the problem,” said McCoy. He hopes that “other communities across the country” pass comparable legislation.
Two weeks after the signing of the bill, according to McCoy, New York Governor Andrew Cuomo announced that there was a renewed interest in the Child Safe Products Act. The bill appears in the State Legislation each year, but once reviewed by the Senate, it would then be shelved.
As reported by Capital New York, a state affiliate of Politico, additional standards the retailers would have to phase out and then remove particularly remove “priority chemicals” including benzene, lead,
mercury and arsenic. Additionally, in the phase-out stage, products would have a warning label, informing consumers of the chemicals.