Minnesota Legislature Considers Toxic Free Kids Act and BPA Free Baby Products Act

Two bills which seek to reduce the amount of toxic chemicals in children’s products sold in Minnesota were recently introduced into the Minnesota Legislature.

The proposed Bisphenol A (BPA) Free Baby Products Act (HF326/SF225) would phase out the use of BPA in children’s products intended for children age three and under. BPA is a chemical used in some baby bottles, sippy cups, and infant formula containers.

The proposed Toxic Free Kids Act (HF250/SF225) would create a standardized approach to evaluating chemicals in children’s products. The Act would grant Minnesota’s Pollution Control Agency (MPCA) authority to review the safety of chemicals in children’s products and create a “priority chemicals list” based on children’s exposure and chemical toxicity. The Act would then require manufacturers to phase out priority chemicals when safer alternatives become available. In addition, the Act would allow the state to access theInterstate Chemicals Clearinghouse (IC2) to facilitate information sharing with other states that have similar laws.

The scope and intent of the Toxic Free Kids Act raises questions as to whether and to what extent it would be preempted by the CPSIA. Overall, the CPSIA did not significantly alter the preemption provisions of theConsumer Product Safety Act (CPSA). The CPSIA clarified that the CPSC could not expand or constrict the preemption provisions in the Acts which it implements (e.g., Federal Hazardous Substances Act (FHSA),Flammable Fabrics Act (FFA), CPSA, Poison Prevention Packaging Act (PPPA)), and specifically provided that it could not extend the reach of the Acts to preempt State or local common law or State statutory law regarding damage claims. The CPSIA also clarified that the CPSIA and FHSA did not affect state warning requirements that were in effect on August 31, 2003 (a nod to California’s Proposition 65).

Minnesota is not the only state considering this course of action. The proposed Minnesota Toxic Free Kids Act is modeled after a similar law on the books in Maryland since April 2008 known as An Act To Protect Children’s Health and the Environment from Toxic Chemicals in Toys and Children’s Products.