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Report on Phthalates Recommends Permanent Ban on DINP, Additional Permanent Bans on DIBP, DPENP, DHEXP, DCHP, and an Interim Ban on DIOP

By Cheryl A. Falvey on July 24, 2014
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The U.S. Consumer Product Safety Commission (CPSC) has released the risk assessment on phthalates conducted for the CPSC by a congressionally mandated Chronic Hazard Advisory Panel (CHAP). In the Consumer Product Safety Improvement Act, Congress charged the CHAP with making recommendations on whether the use of additional phthalates or phthalate alternatives in children’s toys and child care articles should be restricted as banned hazardous substances. The CHAP made the following specific recommendations in its assessment of the risks of 14 phthalates and six phthalate alternatives:

  • The interim ban on the use of diisononyl phthalate (DINP) in children’s toys and child care articles at levels greater than 0.1% be made permanent because DINP “induces antiandrogenic effects in animals, although with lesser potency than other active phthalates, and therefore can contribute to the cumulative risk from other antiandrogenic phthalates.”
  • The current interim bans on di-n-octylphthalate (DNOP) and diisodecyl phthalate (DIDP) be lifted because they do not appear to possess antiandrogenic potential but that U.S. agencies responsible for dealing with DNOP and DIDP exposures from food and child care products conduct the necessary risk assessments with a view to supporting risk management steps given other toxicological endpoints of concern.

  • Diisobutyl phthalate (DIBP), di-n-pentyl phthalate (DPENP), di-n-hexyl phthalate (DHEXP), and dicyclohexyl phthalate (DCHP) should be permanently banned from use in children’s toys and child care articles at levels greater than 0.1% even though they “individually do not indicate a high level of concern” but citing to their contribution “to the cumulative risk from other antiandrogenic phthalates.”
  • No action be taken on dimethyl phthalate (DMP) or diethyl phthalate (DEP) but further recommends that U.S. agencies responsible for dealing with DEP exposures from food, pharmaceuticals, and personal care products conduct the necessary risk assessments with a view to supporting risk management steps.
  • It is unable to make a recommendation on di(2-propylheptyl) phthalate (DPHP) despite its use in some children’s toys because of the general lack of publically available information on DPHP.
  • Diisooctyl phthalate (DIOP) be subject to an interim ban from use in children’s toys and child care articles at levels greater than 0.1% until sufficient toxicity and exposure data are available to assess the potential risks given that antiandrogenic effects are possible.
  • No action be taken on the phthalate alternatives at this time because there “is no evidence that any of the alternatives considered by the CHAP presents a hazard to infants or toddlers from mouthing toys or child care articles” but the CHAP recommends that the appropriate U.S. agencies obtain the necessary exposure and hazard data to estimate total exposure to and assess the potential health risks of:
    • 2,2,4-trimethyl-1,3 pentanediol diisobutyrate (TPIB);
    • Di(2-ethylhexyl) adipate (DEHA);
    • Di(2-ethylhexyl) terephthalate (DEHT);
    • Acetyl tributyl citrate (ATBC);
    • Diisononyl hexahydrophthalate (1,2-cyclohexanedicarboxylic acid, diisononyl ester) (DINX); and
    • Tris(2-ethylhexyl) trimellitate (TOTM).

Congress charged the CHAP with making recommendations on whether the use of additional phthalates or phthalate alternatives in children’s toys and child care articles should be restricted as “banned hazardous substances,” and, interestingly, not whether interim or permanent bans should be issued. No specific action has been or will be taken by the CPSC on the CHAP’s recommendations for some time, and there will be time for industry comment before any restrictions on additional phthalates go into effect.

Photo of Cheryl A. Falvey Cheryl A. Falvey

Cheryl A. Falvey helps clients launch innovative new products while protecting their brand and reputation, avoiding and defending liability in the marketing of their products, building safety and security into their products with science-based risk assessment, and successfully navigating product safety challenges with…

Cheryl A. Falvey helps clients launch innovative new products while protecting their brand and reputation, avoiding and defending liability in the marketing of their products, building safety and security into their products with science-based risk assessment, and successfully navigating product safety challenges with rapid response.

An experienced trial lawyer, and a former general counsel of the United States Consumer Product Safety Commission (CPSC), Cheri defends class actions, unfair competition, product liability and other mass tort claims arising out of consumer, occupational, and environmental exposures. She also provides brand and consumer protection counseling services, with a focus on product safety and security, including the Internet of Things; privacy; anti-counterfeiting; and digital media. Cheri represents a wide range of clients, from emerging companies to multinational Fortune 500 conglomerates.

Cheri is widely recognized as a leader in her field. She is one of an elite group of attorneys to be ranked in Chambers USA, Band 1 for Product Liability: Regulatory. She is highly regarded for her considerable experience advising clients on regulatory issues, including risk assessments, product recalls and CPSC investigations.

She represents clients on litigation and counseling matters regarding:

  • Compliance with statutes and regulations enforced by the CPSC, FDA, NHTSA, and the FTC.
  • Handles product recalls conducted in cooperation with NHTSA, CPSC, and FDA, and defends clients in agency enforcement actions seeking civil and criminal penalties.
  • Advises manufacturers faced with the potential release of unfair and inaccurate information by the government.
  • Counsels and defends clients on the sale and marketing of consumer products on the Internet, including compliance with the Children’s Online Privacy Protection Act, the FTC’s Green Guides, and state and federal privacy laws.

Prior to joining Crowell & Moring, Cheri served as the general counsel of the CPSC. In that capacity, she oversaw all federal court litigation, including civil and criminal cases referred by the Commission to the Department of Justice. Her tenure at the CPSC included advising the agency on the implementation of the Consumer Product Safety Improvement Act, a sweeping change to its statutes that had an impact across diverse industry sectors.

Cheri serves as Vice -chair of the American Bar Association’s Consumer Products Regulation Committee, Administrative Law & Regulatory Practice Section. She was named to the National Law Journal’s 2014 list of Governance, Risk & Compliance Trailblazers & Pioneers. Prior to joining the CPSC, Cheri had over 20 years of private practice experience as a partner with another international law firm where she chaired the firm’s D.C. litigation practice. Cheri is also a former member of Crowell & Moring’s Management Board.

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  • Posted in:
    Health Care and Life Sciences
  • Blog:
    Retail & Consumer Products Law Observer
  • Organization:
    Crowell & Moring LLP
  • Article: View Original Source

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