Lawsuit Filed Against State of Oregon Regarding Toy Safety Regulations

December 20, 2021 | A coalition of advocacy groups representing manufacturers and sellers of children's products have filed suit in federal court against Oregon regarding the “Phase Three” Rule of the state’s Toxic-Free Kids Act, which is scheduled to take effect January 1, 2022.

The Toxic-Free Kids Act, passed in 2015, was designed to identify and “phase out” (i.e. ban) a long list of chemicals from certain children’s products sold in the state. The removal or replace provision, “Phase Three” of the act, would require the removal and substitution of any deemed “chemicals of concern” in children’s product that manufacturers have been reporting to the state.

Filed by the Safe to Play Coalition, of which The Toy Association is a member, the suit alleges that the state does not have the authority to require such regulations and that the provision directly conflicts with the federal Consumer Product Safety and Hazardous Substances Acts, which expressly preempts Oregon from implementing such requirements.

The suit was filed in order to ensure that the state a) does not diverge from federal safety standards, which already extensively regulate the use of chemicals in toys and other children’s products and b) does not supersede the authority of the Consumer Product Safety Commission (CPSC), which was created by Congress specifically to “develop uniform safety standards for consumer products to minimize conflicting state and local regulations.”

The Safe to Play Coalition has requested a preliminary injunction to keep these provisions from going into effect, but it may not be ruled upon by January 1, so Toy Association members should plan to meet all current deadlines at this time.

The Oregon Health Authority’s Toxic Free Kids Program: Fee Payment & Application Upload Portal is now live. The Authority must receive all requests on or before December 31, 2021. Biennial notices for products containing HPCCCHs at or above de minimis, which were sold or offered for sale in Oregon in 2020 through 2021, are to be made to the High Priority Chemical Data System. This should also be done on or before the end of the year.

“This lawsuit follows months of outreach to the Oregon Attorney General’s office in the hopes of finding a simpler path to relief and resolution,” said Jennifer Gibbons, senior vice president of federal affairs at The Toy Association. “Yet with deadlines fast approaching, we encourage anyone looking to submit a request for exemption, substitution, or waiver to get their paperwork in before year’s end.”

The Safe to Play Coalition is an alliance representing hundreds of U.S.-based sellers of toys and children’s products that meet stringent U.S. safety standards. The Toy Association is a member.

The Toy Association will continue to keep members apprised of new developments.