Grinchlike behavior: Toy Association delivers lawsuit against safer toys just in time for the New Year

In one of the most Grinch-like moves of 2021, American Apparel, the Toy Association, and its member coalition- Safe to Play, filed a lawsuit during the week of Christmas, in an effort to ensure that they can continue delivering toxic toys to Oregon kids.  They claim that the final rules of Oregon’s Toxic Free Kids Act (TFKA) is preempted based on the  Federal Hazardous Substances Act (FHSA) and Consumer Product Safety Act (CPSA), and that compliance with phaseouts, especially if they have to pay the fees to apply for waivers, will cause them “irreparable harm.”

This move came six and a half years after TFKA was enacted, and over 9 months since the final rulemaking of TFKA’s implementation wrapped up in February 2021. Under TFKA, children’s toy manufacturers selling products in Oregon (with global sales of over $5 million) were required to have had harmful chemicals identified by TFKA phased out by the new year. In other words, rather than use the near-seven years to phase out harmful chemicals and further green chemistry innovation, the toy industry chose to sue over TFKA’s requirements– two weeks before their Jan. 1, 2022 deadline. 

Under TFKA’s implementing rules, if the Oregon Health Authority (OHA) believes a manufacturer has been non-compliant, they have 30 days to give manufactures notice. Manufacturers then have 90 days to cure that noncompliance before civil penalties. This means that there are already existing administrative procedures to help manufacturers comply with TFKA’s phaseout requirements. 

Thankfully, Judge Simon denied the Toy Association’s motion for a Temporary Restraining Order in this week’s hearing on January 4th– noting that they have not demonstrated an “irreparable” harm. 

However, Judge Simon seems committed to deciding this lawsuit expeditiously. He proposed a scheduling conference between industry and the state on January 20th and is proposing to go to trial on March 24, 2022 to combine hearing the merits of the case and their case for a preliminary injunction. 

Learn more about OEC’s work to pass TFKA and to reduce Oregon kids’ exposure to toxic chemicals. OEC remains committed to common-sense protections from toxic chemicals, and we’ll be keeping an eye on this case as it works its way through the legal system in the months ahead. 

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