CPSC to Finalise Rule That Could Ban Five Phthalates in Toys

The US Consumer Product Safety Commission has agreed to finalise a rule by 18 October that could ban the use of five phthalates in children’s products.

The agreement settles a lawsuit brought by NGOs which protested against the more than two-year delay in finalising the proposal, although the settlement specifies only the deadline for publishing the final rule, not its content.

Responding to the 2008 Consumer Product Safety Improvement Act (CPSIA), the commission issued a proposed rule in late 2014 to ban five phthalates in children’s toys at levels greater than 0.1%. These are:

diisobutyl phthalate (DIBP);

di-n-pentyl phthalate (DnPP);

di-n-hexyl phthalate (DnHP);

dicyclohexyl phthalate (DCHP); and

diisononyl phthalate (DINP).

The proposal was based on a 2014 report by the Chronic Hazard Advisory Panel (CHAP) which identified health concerns from the substances. The CPSC was required to publish the final rule within 180 days of the CHAP’s report on 14 January 2015, but failed to do so.

NGOs the Natural Resources Defense Council, Environmental Justice Health Alliance for Chemical Policy Reform and the Breast Cancer Fund filed a lawsuit in December 2016 to compel action on the rule, alleging that the agency's failure to comply with statutory deadlines "exposes the public to serious health risks".

If the final version of the rule is unchanged, the five phthalates would join DEHP, DBP and BBP in being banned above de minimis levels in certain children's products. Interim bans are currently in place on DIDP, DnOP and DINP; the last of which would be made permanent by adoption of the proposed rule.

According to the decision filed on 18 August, the CPSC and the NGOs submitted a proposed agreement on 23 March that would require the commission to vote on a final rule by 18 October.

On 6 April, the National Association of Manufacturers (NAM) filed a motion to intervene, arguing that the NGOs had failed to show they suffered injury as a result of the delay because the phthalates in question are not currently used in children’s products.

The court, however, found that the NRDC provided sufficient evidence that at least some of the phthalates are contained in children’s products and that exposure to the substances poses "credible harm". The presiding judge then accepted the consent decree, imposing the 18 October deadline.

Manufacturers of children's toys subject to phthalate bans are required to complete third-party testing verifying compliance. Industry groups have long been critical of the burden that this imposes in scenarios where the chemicals are known not to be present.

In a separate action, the CPSC has agreed to lift this testing obligation for seven plastics where phthalates banned under the CPSIA are unlikely to be present. If the commission finalises restrictions on these additional substances, the testing rule will be amended to include them.