From Walter Olson, Overlawyered:
Since the CPSC cannot be sure of having the last word — its attempt to carve out an exemption for pre-Feb. 10 phthalate inventories was just struck down — it would be incautious for producers or retailers to rely overmuch on its policy pronouncements, especially since, while it obviously has some discretion over its own enforcement efforts, it cannot prevent others (like state attorneys general) from bringing their own actions. One of those state AGs, Richard Blumenthal of Connecticut, just issued a press release crowing over the consumer groups’ phthalate victory and warning retailers, thrift stores presumably included, that “My office will take whatever steps are necessary [emphasis added] to ensure this phthalate ban is enforced.” (Note that while the phthalate ban was often argued for on the basis of the “precautionary principle” — even if no actual harm to humans has been proved, shouldn’t we alter the formulas for making the items to be safe rather than sorry? — Blumenthal & co. now seek to redefine millions of existing playthings in American homes as “toxic toys”.) It should be noted that private activist and lawyer groups often shop potential cases to state AGs’ offices, and in turn are made monetary beneficiaries of resulting fines and settlements (more on California’s CEH here).
Despite the CPSC’s spate of actions Friday supposedly offering relief, ambiguity and potential liability still rule. From Publisher’s Weekly, “CPSIA Enforcement Waived for Post-1985 Books“:
This announcement is good news for publishers, but it still leaves some gray areas. State attorneys general, for example, could still prosecute companies for violations of the Act, even though the CPSC itself has said it won’t take action. In addition, there is no clear definition of what an “ordinary” book is. Most experts interpret the term as meaning ink-on-paper or ink-on-board books, but what about books that are bound with metal staples, which could contain lead? Finally, it seems to put libraries’ older holdings back in the spotlight, raising the question of what they should do with books printed before 1985; the latest announcement suggests they could be prosecuted or fined for lending those out.
The American Motorcyle Association is warning of major disruptions in the sale of dirt bikes and other motorcyles sold for children’s use.
How is it that Congress gladly extends the deadline on the switch to Digital Television, at most an inconvenience to some, but refuses to take action to prevent a deadline that will shut down businesses, remove desired productts, and open the door to widespread litigation?
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