ELR Citation: 51 ELR 20033
No(s). 17-60836 (5th Cir. Mar 1, 2021)

The Fifth Circuit upheld a rule issued by the Consumer Product Safety Commission prohibiting the manufacture and sale of children's toys and childcare articles that contained concentrations of more than 0.1% of any one of five phthalates, but remanded the rule to the Commission to address two procedural errors in its promulgation. Chemical industry trade groups argued the Commission failed to give an adequate opportunity for comment, failed to apply the proper procedural standards, redefined the substantive standards, and arbitrarily and capriciously applied the scientific data. The Commission moved to dismiss or transfer for lack of jurisdiction. The court held that it had jurisdiction to review the rule because it was defined by Congress as a consumer product safety standard, and that the Commission procedurally erred in promulgating the rule by not providing an adequate opportunity to comment and by failing to consider the costs of a portion of it. The court therefore upheld the rule, but remanded to the Commission to address the procedural errors.