A number of states considered or passed legislation regulating phthalates in 2007 and 2008, a trend that is likely to continue in 2009. For instance, in 2007 California enacted a 0.1 percent limit on certain phthalates in toys and child care articles. California’s phthalates law went into effect on January 1, 2009. Vermont and Washington state also enacted phthalates laws in 2008. Washington’s Department of Ecology subsequently withdrew portions of its proposed rules implementing the Washington law due to concerns about preemption by the CPSIA. Other states with proposed phthalates legislation in 2007-2008 included Connecticut, Hawaii, Illinois, Maryland, Minnesota, Missouri, New Jersey, New York, Rhode Island, and West Virginia.
Under the preemption provisions in the Consumer Products Safety Act (which apply to the CPSIA), states may not adopt phthalate limits that are different than those contained in the CPSIA. States may enact identical limits, giving them the ability to enforce the standards separately under state law. In addition, section 108(d) of the CPSIA expressly allows states to regulate chemicals that are used to replace phthalates as they are phased out. We expect a number of states to be active in this area in the upcoming year; stay tuned for future posts.