HCA Alert: U.S. Court of Appeals...

The U.S. Ct. of Appeals ruled on March 1st, that CPSC did not provide adequate notice and opportunity to comment when it made interim ban of DINP part of a permanent Rule in 2017.

U.S. Court of Appeals find CPSC Erred in the Process to Adopt Final Phthalate Rule
and Remands to CPSC to Correct Mistakes in Process

While the Court determined the Commission ultimately applied the proper health standards to its rulemaking (a “reasonable certainty of no harm” standard) to continue its prohibition on DINP, and the “need to protect the health of children” to expand its prohibition on DINP and prohibit DIBP, DPENP, DHEXP, and DCHP. However, the Commission did not give an adequate opportunity to comment when it changed its underlying rationale for the final rule. It also erred by failing to consider the cost of continuing the interim prohibition of DINP. Therefore the Ct. remanded the rule back to CPSC requiring further notice, comment, and consideration of these as the basis for a Final Rule. The. Kurt noted that there is a serious possibility that the CSPC will be able to remedy its failures, but must allow the industry to comment and consider the new justification for the Final Rule. Further, it must consider the costs of continuing Congress’s interim prohibition on DINP to determine whether the rule is “reasonably necessary” to protect from harm. The Ct. retained Jurisdiction of the matter going forward.

As a practical matter, the case will have little impact on the production of children's costumes which have largely been made without DINP for years