Consumer Products Law Blog

Welcome to Dorsey's Consumer Products Law blog. This blog provides visitors with informative, up-to-date and easy-to-understand commentary on consumer products matters. Our purpose is to help manufacturers, importers, warehousers, retailers, e-tailers, consumers, and lenders better understand the legal issues impacting the consumer products industry.

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Recent Cadmium Recalls Spark Concern and Legislation

July 19, 2010 | Posted by Elizabeth Gray

On Tuesday, July 13, the U.S. Consumer Product Safety Commission (CPSC) issued a voluntary recall in cooperation with Tween Brands, Inc. of about 137,000 pieces of children’s jewelry containing high levels of cadmium, a toxic heavy metal. Tween Brands owns Justice, the clothing store for preteen girls formerly known as Limited Too. The recall is the sixth in a series of recent product callbacks due to hazardous levels of cadmium. Cadmium, a naturally occurring metal, ranks 7th on the Center for Disease Control’s priority list of the 275 most hazardous substances in the environment. It is carcinogenic, and can cause bone softening, brain damage, and kidney failure. Children can be exposed if they bite, suck on, or swallow cadmium.

The Tween Brands recall was prompted by test reports submitted by the company. A Tween Brands spokeswoman, Carrie Bloom, said the recall was decided "out of an abundance of caution." The recall involves 19 different styles of metal necklaces, bracelets and earrings. Customers can return the jewelry to Justice stores for a full refund. View the CPSC’s press release announcing the recall.

Similarly, on June 30, the CPSC issued a recall of 66,220 children’s bracelets and 2,220 rings distributed by SmileMakers, Inc, citing high levels of cadmium in the products. The jewelry was distributed for free at doctor and dentist’s offices, and the recall instructs parents to simply discard the products. The CPSC also issued a recall on June 8 in cooperation with McDonald’s. The agency recalled over 12 million “Shrek” movie-themed drinking glasses that were sold at restaurants nationwide. The paint on the glasses contained elevated levels of cadmium, and the CPSC was concerned that children would touch the paint and put their hands in their mouths. McDonald’s offered a $3 refund for the glasses, which is $1 more than their purchase price.

Product manufacturers, most in Asia, have begun using cadmium in products more frequently due to the Consumer Product Safety Improvement Act of 2008 (CPSIA), which set a new, stringent standard for lead in children’s products (read more in Scott Peterkin’s May 24 post and Nena Street’s February 22 post). Cadmium prices have recently plummeted, so the metal provides a convenient and inexpensive substitute for lead. Though the CPSIA contains some regulation of cadmium, the standards limiting its use are significantly less strict than those regulating lead, and only apply to painted toys, not jewelry.

Fashion industry representatives are calling for a review of national cadmium standards in consumer products. Responding to this concern, the CPSC has started a scientific literature review of cadmium and other heavy metals, and is developing a highly protective standard for cadmium in children’s products. Currently, the agency applies a legal guideline that allows action against “hazardous levels” of cadmium without setting specific allowable levels. Earlier this year, CPSC Chairwoman Inez Tenenbaum publicly warned manufacturers in Hong Kong not to replace lead with cadmium or other toxic metals. The agency reiterated its warning to Asian manufacturers during the announcement of Tuesday’s Tween Brands recall. Some American companies have started voluntarily testing for cadmium in their children’s jewelry as a preventative measure. To read more about recent cadmium-related recalls, see http://www.themonitor.com/articles/jewelry-40761-cadmium-children.html.

Identical bills are pending in the U.S. Senate and House of Representatives that prohibit the sale or distribution of children’s jewelry containing cadmium, barium, and antimony. (S. 2975, the Safe Kids’ Jewelry Act, and H.R. 4428, the Children’s Toxic Metals Act). As well, several states have passed legislation limiting or banning cadmium in children’s products. (See Scott Peterkin’s May 24 post and Nena Street’s February 22 post.) Recent actions include:

• Connecticut: H.B. 5314 (signed into law June 4, 2010) prohibits the manufacture, sale, and distribution of children’s jewelry that contains more than 75 parts per million of cadmium, beginning July 1, 2014.

• New Jersey: S-1636 (introduced in the Senate March 4, 2010) prohibits the manufacture, sale, distribution, and importation of products intended for children under 6 that contain any lead, mercury, or cadmium.

• New York: S-9561 (introduced in the Senate January 19, 2010) prohibits the sale of children’s jewelry that contains over 0.5 parts per million leachable cadmium. As well, A-9771 (introduced in the Senate January 26, 2010) bans the use of any cadmium in products made for children under 12.

Elizabeth Gray is a Summer Associate at Dorsey & Whitney LLP. Please see our web site at www.dorsey.com.

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Wireless Industry Organization Files Lawsuit Challenging Cell Phone Radiation Ordinance

July 30, 2010 | Posted by Kurt Whitman

A group representing various sectors of the wireless industry has filed a lawsuit in the Northern District of California challenging San Francisco’s new ordinance requiring retailers to disclose radiation levels of the mobile devices they sell. San Francisco Mayor Gavin Newsom signed the “Cell Phone Right-to-Know Ordinance” (“the Ordinance”) into law on July 1, 2010. It will take effect beginning in February 2011. The plaintiff, CTIA—The Wireless Association® (“CTIA”), is a Washington D.C. nonprofit membership organization that advocates for many of the wireless industry’s largest manufacturers and retailers . CTIA initially protested the new ordinance by pledging to move its wireless trade show from San Francisco–the show’s location for five of the past seven years. The lawsuit reflects an even stronger move on the part of the wireless industry to combat local cell phone regulation.

The CTIA Complaint

In its complaint, CTIA asserts in three counts that San Francisco has violated the Supremacy Clause of the U.S. Constitution by attempting to preempt federal law:

• First, CTIA claims that federal law impliedly preempts the Ordinance because the regulatory field of wireless communications belongs exclusively to the federal government.

• Second, CTIA asserts that the Ordinance conflicts with federal law by challenging the FCC’s past determination that FCC-compliant wireless handsets are safe and do not require emission warnings. This claim also states that the Ordinance disrupts Congress’s goal of uniform regulations for wireless communications and upsets the carefully balanced mandated goals of the current standard: (1) to encourage rapid deployment and increased usage of wireless communications within an efficient U.S. telecommunications infrastructure and (2) to protect public health and safety. CTIA argues that the FCC has adopted a safe standard for radio frequency emissions when it set the Specific Absorption Rate limit, and disclosure of already-safe levels would only confuse and mislead consumers.

• Third, CTIA asserts that the Ordinance is in clear violation of the Communications Act because the Act explicitly prohibits States from regulating the “entry of . . . any commercial mobile service.” 47 U.S.C. § 332©(3)(A). This prohibition includes state-imposed warning and label requirements.

CTIA seeks a declaration that the Ordinance violates the Supremacy Clause and is preempted by federal law; an injunction prohibiting San Francisco from implementing, enforcing, or threatening to enforce the Ordinance; and costs, attorneys’ fees, and other expenses.

Recent Cell Phone Safety Trends

San Francisco’s Ordinance arrives in the midst of a recent trend to acknowledge a possible link between cell phone use and health risks. In May, the World Health Organization released its Interphone Study , which analyzed cell phone use and its link to brain cancer. Eleven European nations, Japan, and New Zealand participated in the study. Although the decade-long research did not show a conclusive link between cell phone use and cancer, “suggestions” did exist that heavy cell phone use could increase the risk of brain tumors. Researchers concluded that further research is merited.

In response to the Interphone Study, CTIA issued a statement advocating continued research but verifying the FCC’s currently safe standards. CTIA’s Vice President of Public Affairs John Walls stated, “Interphone’s conclusion of no overall increased risk of brain cancer is consistent with conclusions reached in an already large body of scientific research on this subject.”

Some nations have not waited for definitive results—France has passed legislation that requires cell phones to be sold with an earpiece or headset and forbids advertising to young children or providing cell phones to children under six. In the U.S., both Maine and California have considered legislation requiring warning labels on cell phones.

In June, Ohio Congressman Dennis Kucinich pledged to propose a federal law that would require cell phone warning labels. Kucinich acknowledged the lack of a definitive connection between cell phone use and cancer but claimed that studies funded by the telecommunications industry—like the Interphone Study—were “significantly less likely to find a link between cell phones and health effects.” Kucinich called for a “first-class research program” in the U.S. to find answers and in the meantime a federal labeling law to err on the side of protection.

CTIA’s current lawsuit has the potential to help guide government agencies and legislative bodies in their continued concern about cell phone radiation. With more than 285 million mobile phones in the U.S. and 4.5 billion mobile phones globally , the lawsuit will certainly be an interesting development in the months to come.

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