Manufacturers of children’s products and children’s apparel are able to breathe a little more easily, at least for now, after a federal judge granted a stay on a law banning the sale of products containing any amount of a select list of chemicals in Albany County, New York. Set to become effective in January 2016, the county law takes aim at toys, children’s products, or children’s apparel containing any amount — even federally acceptable trace amounts — of antimony, arsenic, benzene, cadmium, cobalt, lead, and mercury.

The legal and regulatory implications of Albany County’s Toxic Free Toys Act are potentially far-reaching. On top of that, it could impose a widespread logistical nightmare on manufacturers, distributors, and retailers who trade in products that are deemed legal and safe elsewhere. For these reasons, this ongoing legal battle is certainly worth keeping an eye on.

Basis of the Challenge

The stay was granted late last week following a lawsuit filed last month in the U.S. District Court for the Northern District of New York by the Safe to Play Coalition, an industry group comprising the American Apparel & Footwear Association, the Halloween Industry Association, the Juvenile Products Manufacturers Association, and the Toy Industry Association.

The lawsuit challenged the legality of the law, asserting that two federal laws — the Federal Hazardous Substances Act and the Consumer Product Safety Act — already regulate the use of certain chemicals and, therefore, preempt the county measure.

As the plaintiffs set forth in the lawsuit, the county law puts manufacturers in an impossible position because there is no way to verify the complete absence of a toxic substance in a product using current chemical testing methods, each of which has a lower limit of sensitivity that is above zero. As Toy Industry Association Senior Vice President of Technical Affairs Al Kaufman told the Albany Times Union, “If you’re measuring, let’s say, lead in plastic, and you don’t detect any, it doesn’t mean you are at zero because … there is no way to detect to zero.”

Further, on a level that is national and global in scope, the law places an unnecessary and impractical burden on the toy and children’s products industry. Economically and logistically, it would be nigh impossible for companies to adopt distribution standards that vary by individual county in order to comply with a local law.

Impact of the Stay

Thankfully, the lawsuit has triggered constructive conversation and negotiation. The motion requesting the stay was filed jointly by the Safe to Play Coalition and Albany County Attorney Thomas Marcelle, signaling a cooperative approach (a “happy agreement between the parties,” the Times Union noted) that will hopefully result in the development of a regulatory scheme that makes legal and practical sense for all involved.

The stay puts both the Albany County law and the federal lawsuit challenging it on hold while the county reviews the concerns brought forth by the Safe to Play Coalition. As the Product Safety Letter reported, the county will continue developing regulations, targeting November for completion, and will then provide them to the legal team representing the coalition for review. The group will then have 30 days to decide whether to continue with the lawsuit.

Under the stipulation, the county also agreed to hold off on enforcing the regulations until six months or more after a decision on preemption is issued or an amended complaint or related appeal is filed. As the law currently stands, a first-time offense would result in a $500 fine, with a $1,000 fine for each additional violation.

More Legal Battles on the Horizon?

While things are moving in a positive direction in Albany County for now, that location is not the only front on which the industry faces similarly heightened restrictions on toys and children’s products.

Similar measures have been introduced in several states. For example, a similar law has been introduced in the New York State Legislature in the past, but has stalled in the Senate. According to the Courthouse News Service, however, Governor Andrew Cuomo has expressed renewed interest in the measure. Other states have adopted similar laws, such as Washington’s Children’s Safe Products Act, although several provisions of the Washington law have been substantially preempted by the federal statutes noted above. However, state regulators work with federal regulators to ensure compliance. Other states like Maine have adopted stricter notification and reporting requirements.

At the county level, Suffolk, Westchester, Dutchess, and Erie Counties in New York either are considering legislation regulating these types of products or have some moving along through the pipeline. In Westchester County, a ban similar to Albany’s on certain chemicals in children’s products sold there recently passed the county legislature unanimously and will go before the county executive.

We will continue to monitor and report on this issue and all related litigation. If you have questions about how such regulations or this litigation could impact your business, please contact:

• Cheryl A. Possenti (716.566.5444; cpossenti@goldbergsegalla.com)
• Paul C. Steck (716.566.5470; psteck@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Product Liability Practice Group