PORTLAND, Ore. (Legal Newsline) – An Oregon federal judge has dismissed litigation that challenged provisions of the state’s Toxic-Free Kids Act.
Judge Michael Simon on June 22 tossed claims brought by a group of plaintiffs brought under federal law. Those plaintiffs sought declaratory judgment and injunctive relief against portions of the TFK Act they said were preempted by the federal Consumer Product Safety Act and the Federal Hazardous Substances Act.
The first provision the lawsuit focused on is OAR 333-016-3015, which requires onerous fees and testing to request an “exemption” from being banned under Oregon law that already exists solely because of the fact of conflicting federal law, the suit says.
The second provision is ORS 431A.258 and its implementing administrative rule, OAR 333-016-2060, which require the identification and reporting of chemicals even though, as present in a children’s toy, they present no risk of harm to children, the suit says.
Simon’s opinion noted the plaintiffs made only a facial preemption argument, not an “as-applied” challenge, calling the distinction “important.”
“At least regarding the 69 chemicals that the Commission has not expressly regulated, or even discussed, under the FHSA, neither the explicit statutory language in the FHSA, nor the structure and purpose of the FHSA, nor the CPSC regulations indicates that any federal regulations were meant to govern any of these 69 high priority chemicals of concern for children’s health when used in children’s products,” he wrote.
“In summary, because the CPSC has not promulgated any rules under 15 U.S.C. § 1261(q) associated with any of these 69 chemicals, the FHSA does not, at least on a facial challenge, expressly preempt any of the Oregon statutory or regulatory provisions at issue in the pending motion.”
A second claim brought under state law was deferred. Simon said he “will afford the parties an opportunity to be heard if they wish.”
The plaintiffs in the lawsuit, filed Dec. 6 in Oregon federal court, are American Apparel & Footwear Association, Inc., Halloween Industry Association, Inc., Juvenile Products Manufacturers Association, Inc., The Toy Association, Inc., and the Safe to Play Coalition. Defendants are Patrick Allen, in his official capacity as the Director of the Oregon Health Authority, and Ellen Rosenblum, in her official capacity as Attorney General for the State of Oregon.