WHAT IF ITEMS I PURCHASED FOR MY CHILDREN CONTAIN PHTHALATES?

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Consumers are becoming more aware of the harmful chemicals in their products, including phthalates.  Phthalates are often used to make plastics flexible and to add fragrances to personal care products.  Those synthetic chemicals can pose a myriad of health concerns.  Namely, phthalates operate as endocrine disruptors, interfering with hormone signaling and fertility and leading to early puberty, low birth weight, obesity, diabetes, impacts to the immune system, cardiovascular and respiratory problems, various cancers and neurological and behavioral problems.  Unfortunately, children are even more susceptible to phthalates and their adverse health effects.  As a result, parents may wonder whether there are legal protections concerning the use of phthalates in children’s products.

Parents may find some peace of mind in knowing that steps have been taken at both the state and federal levels to prevent or limit the use of certain phthalates in children’s toys and childcare products.  On October 14, 2007, Governor Schwarzenegger signed Assembly Bill (“AB”) 1108 (the “California Toxic Toys Bill”) into law, adding certain protections to California’s Health & Safety Code.  Section 108937(a) prohibits the use of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalates (DBP), or benzyl butyl phthalate (BBP) in children’s toys or childcare articles.  Similarly, section 108937(b) prohibits the use of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), and di-n-octyl phthalate (DnOP) in concentrations of more than 0.1 percent in children’s toys or childcare articles “intended for use by a child under three years of age if that product can be placed in the child’s mouth.”    

Following California’s initiative, the federal government took similar steps to protect children from the use of certain phthalates in children’s toys and childcare products.  On August 14, 2008, President Bush signed the Consumer Product Safety Improvement Act (“CPSIA”) into law at Pub. L. No. 110-314, amending the Consumer Product Safety Act of 1972, 15 U.S.C. §§ 2501, et seq.  The CPSIA makes it “unlawful for any person to manufacture for sale, offer for sale, distribute in commerce, or import into the United States any children’s toy or childcare article that contains concentrations of more than 0.1 percent of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalates (DBP), or benzyl butyl phthalate (BBP [or BBzP]).”

Further, as passed, section 2057c(b) temporarily banned the use of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), and di-n-octyl phthalate (DnOP) in concentrations of more than 0.1 percent for use in “any children’s toy that can be placed in a child’s mouth or childcare article,” deferring the ultimate decision to the Consumer Product Safety Commission.  On October 27, 2017, the Commission published the final phthalates rule in the Federal Register at 82 FR 49938.  The Commission (1) kept in place the ban on DINP; (2) lifted the restriction on DNOP; and (3) expanded the restrictions to prohibit concentrations of more than 0.1 percent of diisobutyl phthalate (DIBP), di-n-pentyl phthalate (DPENP), di-n-hexyl phthalate (DHEXP), and dicyclohexly phthalate (DCHP).

Together, those state and federal laws operate to offer protection from some of the problematic phthalates in children’s products.  However, those statutes alone do not cover the range of potential phthalates that children may come into contact with through their toys or articles.  Accordingly, parents may also look to traditional consumer protection statutes if the presence of other phthalates in their children’s products render the advertising or labels false or misleading.

California’s Legal Remedies Act (the “CLRA”), California Civil Code, §§ 1750-1784, for example, makes the following practices unlawful: “representing that goods . . . have . . . approval, characteristics, ingredients, uses, benefits . . . that they do not have;” “advertising goods or services with intent not to sell them as advertised;” and “representing that the subject of a transaction has been supplied in accordance with a previous representation when it has not.”  The CLRA is complemented by California’s False Advertising Law (the “FAL”), California Business and Professions Code, § 17500, which prohibits the dissemination of any information “which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.”

Further, depending on the facts of the case, California’s parents may also find support from California’s Song-Beverly Consumer Warranty Act, provided at California Civil Code §§ 1790-1795.8.  For example, a parent could potentially allege a violation of the implied warranty of merchantability, set out at California Civil Code § 1791.1(a).  That section states that consumer goods must “(1) pass without objection in the trade under the contract description; (2) are fit for the ordinary purposes for which such goods are used; (3) are adequately contained, packaged, and labeled; and (4) conform to the promises or affirmations of fact made on the container or label.”

Where a company explicitly makes a statement about the nature of a product that is rendered false by the existence of phthalates, parents may also be able to allege a breach of express warranty under the Song-Beverly Act.  An express warranty is defined as: “a written statement arising out of a sale to the consumer of a consumer good pursuant to which the manufacturer, distributor, or retailer undertakes to preserve or maintain the utility or performance of the consumer good or provide compensation if there is a failure in utility or performance.”

In all, federal and state measures provide parents with options should their children’s products contain phthalates.  In addition to phthalates, companies may use other harmful chemicals in children’s products, such as per-and-polyfluoroalkyl substances (“PFAS”).  Importantly, California has also taken steps to address PFAS in children’s products.  Any individual considering legal recourse should consult a qualified attorney who can evaluate the applicable laws, relevant legal developments, and specific facts of a given case.

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