Toxic-Toy Rules Frighten Industry Groups

BROOKLYN (CN) — With Halloween around the corner, retail-industry groups are screeching for court relief after a Long Island county adopted tough regulations on toys containing hazardous materials.

Set to take effect on Dec. 1, Suffolk County's Toxic Free Toys Act regulates the content of various chemicals, including toxins such as arsenic, lead and mercury, for any children's toys sold in the county.

The law empowers county officials to scan children's toys for X-ray fluorescence in random inspections of at least 10 retailers per quarter. Retailers face civil penalties of $500 for first-time violations, and twice that for subsequent violations.

Industry groups contend in an Oct. 14 complaint, however, that such enforcement is pre-empted by the Federal Hazardous Substances Act and the Consumer Product Safety Act.

"Congress enacted those provisions to ensure that nationwide, uniform standards would govern the safety of children's products, and to avoid the uncertainty and inefficiency of patchwork safety regulation through hundreds of different state and local standards," the 17-page complaint states. "The law the Suffolk County Legislature has enacted is precisely the kind of law Congress wanted to preempt."

An assistant to Suffolk County Executive Steve Bellone said the office would not comment pending litigation.

The American Apparel & Footwear Association filed the lawsuit with a federal judge in Brooklyn.

Three other trade groups joining the suit as co-plaintiffs are the Halloween Industry Association, the Juvenile Products Manufacturers Association and the Toy Industry Association.

All of the groups belong to the Safe to Play Coalition in light of "extensive federal regulation."

The groups say Congress found that "control by state and local governments of unreasonable risks of injury associated with consumer products is inadequate and may be burdensome to manufacturers."

Of particular relevance to the groups is express preemption clause of the Consumer Product Safety Act that says "no state or political subdivision of a state may establish or continue in effect a requirement applicable to such substance and designed to protect against the same risk of illness or injury unless such requirement is identical to the requirement established under such regulations."

In addition to conflicting with these federal laws, Suffolk County's regulations also conflict with the supremacy clause of the U.S. Constitution and the home-rule provisions of the New York Constitution.

The complaint says extra regulation by Suffolk County will cause retailer-members of the trade groups to lose sales, market share and consumer goodwill because it will be "effectively impossible" for them to comply with "a chaotic, arbitrary application" of code requirements.

"Because distribution centers are not capable of segregating products by county, plaintiffs' members will lose sales, market share, and consumer goodwill in areas beyond Suffolk County, unless the county adheres to federal law," the complaint continues.

Requesting an injunction, the groups are represented by Frederick Locker with Locker Greenberg & Brainin in Manhattan.

The Toy Industry Associaton has 850 global members that account for about 90 percent of the annual U.S. domestic toy market.

The Halloween Industry Association says sales by its 75 members account for 60 percent of all Halloween products in the United States, exceeding $3 billion last year.

Members of the Juvenile Products Manufacturers Association meanwhile made more than $8 billion, dominating almost 95 percent of sales of children's products in the United States.

The last group, American Apparel and Footwear, has nothing to do with a similarly hipster-clothing retailer. The trade group counts 340 members and says children's products made up 10 percent of the $361 billion in annual U.S. retail sales.

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