San Francisco Chronicle  [Printer-friendly version]
October 26, 2006


Plaintiffs say state law pre-empts the local ordinance

[Rachel's introduction: In case you missed it in Rachel's News last
Thursday: A group of corporations is suing San Francsico in court,
claiming the city has no right to take precautionary action to
protect its children from toxic chemicals in toys. This is important
news. It is the first legal challenge to the precautionary ordinance
San Francisco adopted in 2002.]

By Jane Kay, Chronicle Environment Writer

A group of chemical manufacturers, toymakers, retailers and the owner
of the children's store Citikids filed a lawsuit Wednesday challenging
San Francisco's ban on the sale of toddler toys and child-care
products that contain certain chemicals suspected of being toxic

The suit argues that state law, including the California Hazardous
Substances Act, pre-empts the San Francisco ordinance.

Today, the plaintiffs are expected to ask San Francisco Superior Court
Judge Peter Busch for a hearing, during which they will seek a
preliminary injunction to delay the Dec. 1 effective date of the
ordinance until the matter is resolved in court.

City officials already had promised business groups that they would
hold off enforcement until after the holidays.

The San Francisco Board of Supervisors unanimously adopted the
ordinance in June. It prohibits the sale, distribution or manufacture
of toys and child care products intended for use by children under the
age of 3 if they contain phthalates, which are used to soften
polyvinyl chloride (or PVC) and bisphenol A, which is common in hard,
clear plastic. The ordinance does not include penalties for

The law is based on the city's "precautionary principle." The
supervisors said they wanted to err on the side of caution and protect
the youngest children.

A similar ban on phthalates in children's toys and child care products
went into effect in the European Union in July. For years, members had
reviewed a growing number of studies showing that some phthalates
caused cancer and reproductive damage in laboratory animals, raising
questions about what the chemical could do to humans.

San Francisco, however, is the only city in the world to ban bisphenol
A in toys and child care products for youngsters. Bisphenol A is used
to make polycarbonate plastic, the substance used to make hard clear
plastic baby bottles.

Lab studies have shown that bisphenol A can leach out of baby bottles.
In animal experiments, at low doses, it has caused cancer in rats.

The U.S. Food and Drug Administration and scientific bodies in Europe
and Japan have said that low levels of bisphenol A pose no health risk
to humans, the lawsuit said.

In addition to arguing that state law pre-empts the city's effort, the
suing parties contend that the supervisors failed to comply with
Proposition I, a voter-approved measure that requires an economic
review of legislation that might have a material impact on the city
before it goes to a vote.

"No report was prepared, and the city's determination that no report
was required -- when the ordinance will so egregiously impact toy
retailers, grocers and consumers -- was an abuse of discretion," the
suit said.

In a press release, Richard Woo, owner of Citikids Baby News on
Clement Street, said, "The volume of our sales will drop and so will
the number of our employees, since we won't be able to keep them."

Other plaintiffs are American Chemistry Council, California Retailers
Association, California Grocers Association and Juvenile Products
Manufacturers Association.

A spokesman for City Attorney Dennis Herrera's office declined to
comment on the suit.

"We haven't been served with a complaint. It would be premature for us
to comment on it," said spokesman Matt Dorsey.

E-mail Jane Kay at