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PHTHALATES: DOE listing will invite lawsuits

Letter by Daniel Simmons, Washington, D.C. on July 19, 2011 at 1:25 pm | 8 Comments »
July 19, 2011 1:50 pm

Later this week, the state Department of Ecology is set to publish the Children’s Safe Product Act rule, which will include a list of “chemicals of high concern” to children. In the draft rule, DOE proposes to include phthalates.

Listing phthalates, however, would be counter-productive; the federal government already passed regulations governing the use of phthalates in children’s products and included specific language that pre-empted states from passing rules and regulations that are inconsistent with the federal standard.

In 2008, Congress passed the Consumer Product Safety Improvement Act (CPSIA) which regulated the use of phthalates in children’s toy and child care articles. Because the regulation of phthalates is a hot-button issue, the CPSIA included federal pre-emption in order to avoid a patchwork of different state regulations.

If the DOE includes phthalates on its list, it will not provide any additional protection but will invite lawsuits challenging the listing. And because the federal law is clear, Washington’s listing will most certainly be struck down by the courts.

Phthalates are important chemicals used to make plastics soft and flexible. They are the most common plasticizer due to their safety record and durability.

Because federal law protects children and prohibits states from regulating phthalates, it would be redundant and a waste of limited taxpayer dollars for the DOE to list phthalates. With tight state budgets and a struggling economy, now is not the time for overreaching regulation.

(Simmons is director of regulatory and state affairs with the American Energy Alliance, an energy industry lobbying organization.)

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