SAN FRANCISCO (Legal Newsline) - A federal appeals court won't help industry groups challenging Oregon's Toxic-Free Kids Act, finding certain parts of it aren't preempted by federal law.
U.S. District Judge Michael Simon two years ago found the federal Consumer Product Safety Act and the Federal Hazardous Substances Act don't stop Oregon from implementing its own laws regarding chemicals in toys. His decision was affirmed by the U.S. Court of Appeals for the Ninth Circuit on July 15 in an opinion by Judge David Ezra, a Hawaii district judge sitting on the panel by designation.
At issue are possible regulations of 73 chemicals.
"Appellants' interpretation of the regulation would render Congress' careful restrictions on the preemptive effect of the FHSA and CPSA meaningless because it would absolve the (Consumer Product Safety Commission) from having to act by exercising any independent judgment," Ezra wrote.
"In Appellants' view, the Commission triggers express preemption simply incorporating a statutory definition into the regulations. This runs counter to the statutory text and congressional intent - which provides for preemption when the Commission has enacted regulations with discretion using expertise and independent judgment."
Groups like the American Apparel & Footwear Association and The Toy Association filed suit against the Oregon Health Authority and Attorney General Ellen Rosenblum in federal court, targeting two provisions in the TFKA.
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.
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 found 69 of the 73 chemicals on a list have not been expressly regulated or even discussed under FHSA. He said it doesn't appear FHSA or CPSC regulations were meant to govern any of those chemicals.
“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," he wrote.
On appeal, the plaintiffs said the CPSC doesn't have to expressly mention any of those chemicals in regulations to trigger preemption under the FHSA.
The FHSA defines its "banned hazardous substances" as toys used by children that are hazardous.
"In some instances, the (CPSC) has exercised its independent judgment to promulgate regulations," Ezra wrote, noting restrictions on products with lead-containing paint.
"However, the (CPSC) has not promulgated regulations as to all 73 chemicals on the OHA list."