CPSIA - Phthalates Legal LUNACY

Okay, let's recap here: on Thursday, February 5, a District Court in the Southern District of New York decides in the NRDC case against the CPSC that the phthalates ban in the CPSIA is, in fact, retroactive in effect as of February 10, three business days later. This overrides the legal opinion of the General Counsel of the CPSC from two months prior. On Friday, February 6, the CPSC indicates in a press release that it will abide by the court ruling (it won't appeal the ruling) and therefore apply the phthalate retroactively as of February 10 to all inventory in the United States. Two days later, bingo, phthalates in children's products (for children up to 12 years old) are banned. Much clucking from self-satisfied consumer groups for their great work protecting consumers . . . .

Not that it matters, but is this fair? Essentially, ON TWO BUSINESS DAYS' NOTICE, the U.S. government imposed a retroactive ban on a broad class of merchandise brought into this country in compliance with law and which had not previously been the subject of product recalls or reported injuries. In fact, the scientific staff of the CPSC had previously rejected claims that phthalates were unsafe. What's the precedence for this kind of thing?

A clear comparison can be made to the Prohibition. The Prohibition was made effective with the ratification of the 18th Amendment of the Constitution on January 29, 1919. The text of the 18th Amendment is as follows:

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Notably, the 18th Amendment, the ONLY Amendment to the U.S. Constitution to be repealed, gave a one-year grace period to sell off inventory. This grace period was designed to cushion the blow to the liquor industry. It is worth considering that the campaign for the ban on alcohol was brewing for NEARLY 100 YEARS in the United States. Even the process of ratifying the 18th Amendment took 13 months from passage by Congress to its certification of ratification by the States. Implementation took place another 12 months later. All this for a consumable food product that was the subject of a prominent, national movement linked with obvious moral problems. The Volstead Act which created the enforcement mechanism for the Federal government, took effect immediately on October 28, 1919 (after Congress overrode the President's veto), in advance of the effectiveness of the 18th Amendment. See http://www.answers.com/topic/national-prohibition-act-1919.

In the current mania, apparently our Congress has decided that the phthalate "crisis" is SO urgent that they have endorsed a scheme far tougher and much less sensitive to industry than even the Congress that approved the ill-fated 18th Amendment and infamous Volstead Act. With the outcome in the NRDC case, the advance warning provided to industry on phthalates can now be measured in HOURS. It is worth noting that this ban is based on asserted "links" to various health issues. There is considerable scientific debate over these "links" which many people think are not proven. Whether or not the "links" are real, it is abundantly clear that there is nowhere near universal agreement that this is a national health crisis. It goes without saying that the application of the ban on all products intended for children up to 12 years of age far outstrips the target zone of babies and toddlers who are known to mouth toys and other objects. Is it appropriate to impose such massive losses on industry in the face of such a fuzzy threat that is not universally accepted?

In a self-justifying environment of legislators who congratulate themselves for "protecting children" without comparing cost (certain) and benefit (quite uncertain and tentative), it is not just business interests that are being disenfranchised. Let's not forget that all those businesses have customers (you) who need or value their products and services. The notion that this law only adversely affects a limited group of Americans or businesses is, in my opinion, loopy. This affects us all, and will deprive us of diversity of products and vitality in our local economies. Is it time to tell your government that you have had enough - and will remember them and their actions when you next step into the voting booth?

Tell Congress how you feel - before they bankrupt your business.

Rick