ELR Citation: ELR 20026
No(s). 08 Civ. 10507 (S.D.N.Y. Feb 5, 2009)

A district court held that §108 of the Consumer Product Safety Improvement Act of 2008, which prohibits the sale of children toys and products that contain phthalates, applies to existing inventory and not just to those products manufactured after the prohibition's February 10, 2009, deadline. The U.S. Consumer Product Safety Commission (CPSC) General Counsel stated in an opinion letter that phthalate prohibitions do not apply to products manufactured prior to February 10, 2009. But the plain text of the phthalate prohibitions provides unequivocally and unambiguously that no covered products may be sold as of February 10, 2009. Moreover, §108(d) does not, and was not intended to, create an exception for existing inventory. Even if the phthalate prohibitions could be construed as ambiguous with respect to their application to existing inventory, the Commission's opinion letter would not be entitled to deference because it is not thorough, well-reasoned, or substantiated. The opinion letter, therefore, must be set aside.