California's Retroactive Phthalates Ban Now Effective

On January 1, 2009, California's ban on certain phthalates in certain children's products went into effect. The statute, Assembly Bill 1108 ("A.B. 1108") was signed into law in October 2007. A.B. 1108 prohibits the manufacture, sale, or distribution in commerce of any toy or child care article containing DEHP, DBP, or BBP in concentrations exceeding 0.1 percent. A.B. 1108 further prohibits the manufacture, sale, or distribution in commerce of any "toy or child care article intended for use by a child under three years of age if that product can be placed in the child's mouth" containing DINP, DIDP, or DnOP in concentrations exceeding 0.1 percent.

California's A.B. 1108 is similar in many respects to the federal provision banning specified phthalates, Section 108 of the Consumer Product Safety Improvement Act ("CPSIA"). On November 17, 2008, Consumer Product Safety Commission ("CPSC") General Counsel Cheryl Falvey issued an advisory opinion letter stating that the CPSC will not apply the federal phthalate ban retroactively. Following publication of this advisory opinion, the California Attorney General submitted a letter to the CPSC on December 3, 2008, stating that California will apply its phthalates ban retroactively. In this letter, the California Attorney General also argued that the California phthalate ban is not preempted by the federal phthalate provision. The CPSC has subsequently indicated that it "respects the law as passed in California and its implementation," but has not issued an official written response addressing California's preemption analysis. Whether courts will conclude that the California statute is preempted by federal law remains to be seen.