The one body with jurisdiction over toys is the Consumer Products Safety Commission (CPSC). That government agency has been cut to 100 inspectors to monitor some 15,000 products--including those lead-painted toys from China.
In 1998 a petition was submitted to the commission by a coalition of environmental health groups--including National Environmental Trust, the Science and Environmental Health Network and Greenpeace--demanding a ban on polyvinyl chloride, which contains phthalates, in children's toys. The CPSC went on to review toxicity studies of DINP, a phthalate that's similar to DEHP, and then in 2003 conducted a study of children's interactions with plastic toys. The CPSC's Human Relevance Working Group, the team charged with assessing people's interactions with potentially dangerous products, installed cameras to monitor the "mouthing behavior" of 169 children in Houston and Chicago for two days. Another 491 children were observed by their parents, who took notes on their behavior. The frequency with which the children (55 percent boys, 45 percent girls) mouthed soft plastic toys spread liberally around them was registered and timed. This research, commonly called the Kids Suck study, showed that the average 1-year-old or younger spends seventy minutes a day sucking on plastic; forty-eight minutes for children between 1 and 2; thirty-seven minutes for children between 2 and 3--not enough time sucking, CPSC concluded, to deliver a "designated health risk" to children under 5.
"The dose makes the poison," CPSC spokesman Scott Wolfson explained to me. "There were not enough phthalates released in those toys to pose any danger." Wolfson's comment revealed another key difference between European and American approaches to regulating chemical exposure. For phthalates, the United States looked at the time children may be exposed and determined it was not long enough for concern. The Europeans looked at phthalates' toxicity and decided to limit a potential route of exposure: toys.
Industry giants Mattel and Hasbro lobbied strenuously against EU regulation of phthalates. But when their campaign failed, both companies, which have significant European sales, announced they would abide by the European standards and remove phthalates from their worldwide production of young children's toys. Company members of the TIA, Joan Lawrence told me, agreed "voluntarily" to take DEHP and other phthalates out of rattles, pacifiers and teethers, products "intended to be used in the mouth." That agreement was announced in the 1980s, after concerns surfaced over phthalates' potential carcinogenicity. It did not, however, cover toys. The result can be seen in the playrooms of American children.
Environment California and the Public Interest Research Group teamed up to conduct chemical analyses of infant playthings, an exercise never performed by the US government. They bought teethers, bath books and toys and sent them to an EPA-certified chemical lab in Chicago for a breakdown. Fifteen of the eighteen products tested contained one or another of the six phthalates banned in the EU. A dozen infant products--including waterproof books and bath toys--contained measurable levels of DEHP. Nine of those contained multiple phthalates that toy makers have in the past decade said they would voluntarily remove. One teether--the Teething Ring, which induces infants to suck on it to get an oral-pain-relief gel--contained DEHP. Another, the Baby Gund Jungle Collection Teether, contained DBP, a phthalate classified by the EU as a reproductive toxin and carcinogen. Today, an American who wants phthalate-free toys can find them in the brands manufactured by multinationals. Those companies, according to Lawrence, account for about 40 percent of the US market. But for those who buy at discount stores or buy generic brands online--outlets that sell millions of baby products a year--if they're plastic and soft there's a good chance they contain phthalates.
Chan's bill in California was modeled explicitly on Europe's law; it was, commented Peter Price, a lobbyist for the bill, "the EU directive coming to Sacramento." The arguments were the same as had been pushed in Europe, and the key players were the same, too: Hasbro and Mattel had acceded to the demands of the EU in Europe, but as the largest members of the trade group were a part of the lobbying campaign launched to kill the effort to impose those same restrictions in California. The same held for the Weinberg Group--whose Brussels-based representatives had been the leading voice of US industry opposition to the EU's phthalate initiatives and which would now send James Lamb to represent them in Sacramento.
After Chan's bill went down, San Francisco took up her idea; it passed an ordinance prohibiting the sale of toys and childcare articles containing phthalates likely to go into children's mouths from being sold within the city limits. That made San Francisco the first government in the country to limit children's exposure to phthalates. The sellers of toys containing the same six phthalates singled out by the EU would be subject to fines that could go to thousands of dollars. Shortly before the bill took effect, the San Francisco Chronicle tested samples of randomly purchased toys and discovered that at least three out of sixteen exceeded the city's new phthalate limits. Those included a teether, a doll and a rubber ducky sold at the drugstore chain Walgreens; the toys had thirteen times the allowable level of DEHP. The response of industry was not to remove toys from the market but to file a lawsuit: the TIA, along with the American Chemistry Council, the Juvenile Products Manufacturers Association, retail industry groups and local toy stores, sued to block the implementation of the ordinance on the grounds that on such matters city law is pre-empted by state law. That challenge is pending.
Wilma Chan was ultimately termed out, but her idea had better luck this year. In September the Assembly passed a similar bill, sponsored by Assemblywoman Fiona Ma of San Francisco, banning the use of phthalates in toys aimed at children under 3. Advocates mounted a poignant public campaign, featuring the distribution of 1,000 phthalate-free rubber duckies on the day of the vote; a rally in Los Angeles featuring Harvey Karp, a well-regarded pediatrician; and a novel initiative led by teenage girls, affiliated with Teens for Safe Cosmetics, who called friends around the state to pressure their legislators by telling them that within a year they would be voters. "It was one of those rare examples of 17-year-old girls being charitable to the generations behind them," commented Rachel Gibson, staff attorney at Environment California. On October 14, Governor Schwarzenegger signed Ma's bill. When it goes into effect next year, Californians will be the only Americans who can shop knowing their toys contain no phthalates.
Meanwhile, phthalates in toys continues to be an issue in Europe. Since the EU's ban two years ago, there have been almost monthly confiscations of toys that violate the phthalate restrictions. Last July customs authorities in Lithuania ordered an immediate withdrawal from the market of plastic hippopotamuses and dolphins from China because of their DEHP levels; the month before, they had confiscated a shipment of soft plastic toy snakes. There is nothing, of course, to prevent those toxic toy animals from coming into the United States.