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Coalition Fights Albany Toy Chemical Ban

ALBANY, N.Y. (CN) - A coalition of industry groups contends federal statutes pre-empt an Albany County law banning certain chemicals from children's clothing and toys, and wants enforcement of the local measure blocked.

In a lawsuit filed in the Albany Federal Court, the Safe to Play Coalition says Congress established uniform safety standards for children's products decades ago specifically to avoid a patchwork of state and local laws addressing the issue.

The coalition includes trade groups representing apparel and toy companies accounting for billions of dollars in annual retail sales.

"The law Albany [County] has enacted is precisely the kind of law Congress wanted to pre-empt," the group says in a complaint filed on Thursday.

The local law also violates the Constitution's supremacy clause, and as a result is "null and void," the coalition says.

Albany County passed the local measure late last year. Signed into law in January, it becomes effective in January 2016.

The law bans the sale of children's products and apparel containing any amount of benzene, lead, mercury, antimony, arsenic, cadmium or cobalt.

Violators face a $500 fine for the first offense and a $1,000 fine for every subsequent violation.

In signing the law, County Executive Daniel McCoy said the seven chemicals are known "to have harmful effects, including damaging blood and organs, causing cancer and impeding their [children's] cognitive and physical developments."

He put the county Health Department in charge of enforcement.

The county, the department, McCoy and acting health commissioner Christine Compton are the defendants named in the complaint.

The Safe to Play Coalition is comprised of the American Apparel & Footwear Association, Halloween Industry Association, Juvenile Products Manufacturers Association and Toy Industry Association. The groups represent hundreds of businesses that manufacture, import and distribute products for children.

The plaintiffs contend the Federal Hazardous Substances Act, passed in 1960, and the Consumer Product Safety Act, passed in 1972, pre-empt the Albany County law.

The latter act created the Consumer Product Safety Commission, which the complaint describes as "an independent, expert federal regulatory commission" charged with protecting the public from injury or death from consumer products.

The commission implements the safety goals of the two acts by ensuring "nationwide uniformity in the standards governing the sale of products containing hazardous chemicals," according to the coalition.

The group says the acts expressly pre-empt any law that does not exactly mirror them.

The Albany County law, though, is not identical because it "imposes a blanket ban on children's products containing any level of the seven specified chemicals," whereas the federal statutes ban products containing "an accessible and harmful amount of a hazardous chemical," according to the coalition.

Through the latter provision, Congress "instructed the CPSC [Consumer Product Safety Commission] to ban consumer products only when they presented 'unreasonable' safety risks," (50) the group says. "In response, CPSC has adopted a flexible, measured, balanced approach that fully ensures the safety of children's products."

The coalition contends its members "will suffer irreparable harm absent an injunction."

The complaint says sales and market share will be lost if coalition members fail to comply with the Albany County law, or they "will be forced to undertake significant and costly alterations" in research, testing, manufacturing and distribution in order to comply.

In addition to temporary and permanent injunctions, the plaintiffs seek court costs and fees.

They are represented by Anthony Boccanfuso of Arnold & Porter in Manhattan.

A spokeswoman for McCoy, the Albany County executive, said Monday that the county was aware of the complaint but had not yet been served officially.

"The county is reviewing its options," said Mary Rozak, director of communications.

McCoy acknowledged when he signed the law in January that enforcement "presents certain challenges," including budgetary ones going forward.

But "we can't take baby steps in addressing the problem," McCoy said then, adding that he hoped "other communities across the country" would pass similar measures.

Two weeks after the signing, McCoy noted that New York Gov. Andrew Cuomo announced renewed interest in the Child Safe Products Act.

The bill pops up annually in the state Legislature, but usually is sidelined in the Senate.

It would require that certain "priority chemicals," such as benzene, lead, mercury and arsenic, be phased out of children's products, according to Capital New York, a state affiliate of Politico. Products would have to be labeled if they contained any of the chemicals.

Earlier this month, the publication reported that growing support for the bill around the state may give it a better chance of passage by the Legislature this year.

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