The flood of issues regarding toys and children's products led many in the industry to title 2007 the "year of the recall". Unfortunately, analysis of Consumer Product Safety Commission data indicates that the recall of toys and children's products are up 22% over the first half of last year. (Press Release, Illinois PIRG, CPSC Data Show Safety Recalls Increased 22% Over Last Year (2008) (www.illinoispirg.org)).
One publication, from the Ecology Center and the Washington Toxics Coalition, found lead in 35% of 1,268 products tested. (Healthytoys.org, Findings, http://www.healthytoys.org, (last visited Sept. 18, 2007). A 2007 lead test of toys, conducted by the Chicago Tribune, turned up lead-tainted toys in several stores throughout the Chicago area, some of which were in violation of federal safety limits. (Ted Gregory and Sam Rose, Many More Toys Tainted with Lead, Inquiry Finds, Chicago Tribune, Nov. 18, 2007). Another test, conducted by Washington Toxics Coalition, detected phthalates, a toxic compound linked to harmful effects (which was banned from toys by the European Union), in 9 out of the 20 toys tested. (Erika Schreder, M.S., Not So Squeaky Clean: A Study of Phthalates in Toys, Washington Toxics Coalition & Toxic-Free Legacy Coalition, (2008). Even mainstream toys have been removed from shelves as the result of an unsafe design or high levels of toxicity and lead. ( Illinois PIRG Education Fund, Trouble in Toyland, The 22nd Annual Survey of Toy Safety (November, 2007)).
As a result, parents and lawmakers alike have decided that there is a great need to address the issue of unsafe toys. United States Senator Dick Durbin notes that he is "deeply disturbed by reports of dangerous children's products entering the marketplace…" and that "these instances have demonstrated that there are critical gaps in both federal and industry efforts to protect our children from hazardous toys". (U.S. Senator Richard J. Durbin, Toy Safety, http://durbin.senate.gov/issues/pri_con.cfm (last visited Sept. 19, 2008).
The concern of parents and legislators has led to local and national legislation, worthy of the attention of toy manufacturers, toy store owners and consumers. On August 14, 2008, the new Consumer Product Safety Improvement Act of 2008 was signed into law by President Bush. The new federal legislation imparts several additional requirements on manufacturers, distributors and retailers. The bill bans lead beyond diminutive amounts in products for children under 12 and bans (permanently or pending further study) toys containing six types of phthalates. (H.R. 4040, Title I, Sec. 101(a) & Section 108(a) (2008)). The bill also doubles the budget of the Consumer Product Safety Commission and offers the Commission new authority to oversee testing of toys and impose civil penalties on violators. (H.R. 4040, Title II (2008)).
The bill further requires pre-market testing by thirdparty laboratories for compliance with safety standards. (H.R. 4040, Title I, Section 102 (2008)). It also requires the toy industry participants to report potentially hazardous or dangerous toys (and whistleblower protections are added). (Jim Abrams, Congress Sends Bush Bill Banning Lead in Toys, Fox News, July 31, 2008). Requirements and standards, once voluntary, are now mandatorily applied to manufacturers, distributors, retailers, and importers. Id.
Since the Commission's budget is being boosted, manufacturers, importers, distributors and retailers can expect increased enforcement of safety standards. An increased penalty for failure to comply should also be expected under the new provisions. (H.R. 4040, Title 2, Sub. B, Sec. 217). Manufacturers, importers, distributors and retailers should immediately increase their awareness of the make-up of those toys and toy components placed into the market.
Meanwhile, Illinois House Bill 5705 and Senate Bill 2868, otherwise both known as the Child-Safe Chemicals Act, have been proposed in the Illinois House and Senate, respectively. If passed, the Act would regulate the sale and distribution of children's toys and toy parts containing lead and other dangerous chemicals. In addition to setting a hierarchy of dangerous chemicals, the Act would impose reporting requirements on manufacturers and trade associations.
Specifically, the Act would require reporting to the Illinois Environmental Protection Agency. Under the Act, if a manufacturer or trade association fails to report the use of a priority chemical, they can expect the IEPA to assess fees against them. Again, the overall effect is increased consumer protection and increased regulation of toy manufacturers and trade associations.
Parties to the toy industry should also take note of the recently enacted Illinois Children's Product Safety Act which, among other things, prohibits manufacturers from placing a dangerous toy in the stream of commerce. The Illinois Children's Product Safety Act also includes a civil penalty for violators. 430 ILCS 125/1, et. al. (2007).
Toy manufacturers, importers, distributors, and retailers should heighten awareness of the effects of the new federal legislation and possible effects of the proposed Illinois legislation and prepare for increased regulation as to potentially hazardous chemicals and dangerous toys. Increased premarket testing is sure to quickly become a reality. For a closer look at the requirements imposed, toy industry parties should review all portions of the new Federal Act and proposed Illinois Legislation.
Consumers should also be aware that the new Federal Legislation and the proposed Illinois Legislation have created several additional avenues for obtaining crucial information on recalls and protective measures. For more information on hazards of lead and toy toxins, consumers can now turn to non-profit sites such as www.healthytoys.org and the Illinois based, www.kidsindanger.com or to www.illinoisattorneygeneral.gov, in addition to several other sites.
Querrey and Harrow, Ltd. has zealously advocated for consumers, retailers, and manufacturers in actions involving, IEPA and statutory compliance and products liability claims.
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Jessica O'Neill is an associate in Querrey & Harrow's Chicago office and concentrates her practice in general litigation. Jessica currently handles auto liability claims and assists in transportation and construction industry matters which involve negligence and employment liability claims. If you have any questions regarding this article, or would like copies of any of the materials cited, please contact Jessica via joneill@querrey.com, or via 312-540-7596.
