UPDATE: Victory! Judge dismisses Oregon Toxic Free Kids Act Litigation
As we reported at the start of the new year (see below), American Apparel, the Toy Association, and its member coalition- Safe to Play, had filed a lawsuit during the week of Christmas, claiming that Oregon’s Toxic Free Kids Act (TFKA) is preempted based on the Federal Hazardous Substances Act (FHSA) and Consumer Product Safety Act (CPSA).
Thankfully earlier this summer, the federal district court in Portland, Oregon dismissed the toy industry’s lawsuit. Specifically, Judge Simon held that at least 69 chemicals regulated in Oregon’s Toxic Free Kids Act are not even addressed in the federal statutes. Therefore, the Toxic Free Kids Act is not preempted by federal law. This ruling is significant in protecting our state’s approach to removing toxic chemicals from children’s toys, and other states that may have children’s toxic free kids acts that are stronger than federal standards.
What happens next?
Judge Simon deferred ruling on the toy industry’s second claim that the reporting and fee requirements were beyond Oregon Health Authority’s (OHA) authority. As of August 9, 2022, OHA had filed another motion saying the agency does indeed have authority to collect fees and implement the Toxic Free Kids Act, and requesting a judgment in the suit.
We eagerly await the decision from the federal district court on this matter. If dismissed, then the toy industry has an option to appeal to the 9th Circuit if it can show the previous court made an error in facts or law.
Learn more about OEC’s work to modernize TFKA and to reduce Oregon kids’ exposure to toxic chemicals. OEC remains committed to common sense protections from toxics chemicals, and we’ll be keeping an eye on this case as it works its way through the legal system in the months ahead.