Conflicting rules hard on toymakers

A spate of toy recalls last year, including many toys made in foreign factories, like this one in China, has lawmakers in eight states trying to pass tougher product safety rules. However, toymakers say this could make it harder to put toys on store shelves. (Agence France-Presse/Getty images/File 2007)

When Washington Governor Christine Gregoire signed a law banning lead and chemicals known as phthalates from children's products in April, Amy Tucker was thrilled. As president of Matter Group, a Seattle company that makes children's games and stuffed animals out of recycled materials, Tucker already produced products that were lead- and phthalate-free. But when other states began adopting their own restrictions, she became dismayed by the emerging patchwork of regulations.

"It puts manufacturers in the position of having 50 different sets of regulations to abide by," she said, "and that can become very onerous for a company."

In an attempt to avoid a repeat of last fall's wave of tainted toy recalls, lawmakers in eight states have imposed restrictions on toxic substances in children's products such as lead, cadmium, and phthalates. Phthalates, chemicals used to make plastics, have been linked to reproductive problems.

Manufacturers such as Hasbro and Mattel and toy retailers such as Toys "R" Us are echoing Tucker's sentiments.

"Some states have passed extremely restrictive laws that, depending on how they are implemented, may make it impossible to sell many safe toys in these states," Mattel spokeswoman Lisa Marie Bongiovanni said.

The state activity is influencing congressional negotiations over sweeping product safety legislation. The House and Senate each passed slightly different bills, and lawmakers are hammering out a final version. One of the thorniest issues is expected to be to what extent federal safety standards would pre-empt state ones.

Currently, in cases where the state and federal standards conflict, the federal standard prevails. For example, on lead limits, some states have adopted a 40 parts per million standard, which is the one recommended by the American Academy of Pediatrics. But they will most certainly be trumped by whatever federal standard Congress settles on. Both the House and Senate aimed for the same 100 parts per million standard for lead in children's products.

In cases where standards don't conflict, the state standard would stick until the Consumer Product Safety Commission or Congress adopts one.

The pre-emption debate concerns a proposal that toys be tested by an independent lab and certified for safety. Such a requirement normally wouldn't be considered a safety standard and therefore would not override similar state regulations. But manufacturers want Congress to ensure states won't be allowed to pass their own testing and certification requirements. Otherwise, they said, they face the prospect of having to treat each state as a separate market.

"There isn't any one state that has a big enough market to justify the kind of volume production required to bring toys to the market at a reasonable price point," said Carter Keithley, president of the Toy Industry Association, a trade group in New York. "It just does not make any economic sense to make any toys for one state."

Consumer groups, however, in a letter sent to lawmakers Monday, said manufacturers are seeking "permanent lockdown on any future state action to protect their residents."

They said states in the past have moved more quickly than Congress to pass product safety regulations, such as requiring choke hazard warning labels on toys, and should not be stopped from doing so.

Federal standards should be "the floor not the ceiling," said Rachel Weintraub of the Consumer Federation of America.

It is too early to say what effect the state regulations might have on consumers. Retailers have already placed their orders for this holiday shopping season and many of the new state laws don't take effect until next year.

In Washington state, toymakers have made dire predictions, telling the governor and an advisory panel she convened that when the ban on lead and phthalates takes effect next year, they won't be able to sell many of their products.