Rachel's Precaution Reporter #65, November 22, 2006
SAN FRANCISCO'S RIGHT TO PROTECT ITS CHILDREN IS CHALLENGED AGAIN
[Rachel's introduction: In case you missed this hugely important story in Rachel's Precaution Reporter last week: Chemical corporations have sued San Francisco again -- this time in federal court -- claiming the city had no right to pass a law protecting children from poisonous chemicals in toys. This is the first major legal challenge to the precautionary approach.]
By Peter Montague
The American Chemistry Council (ACC) -- formerly known as the Chemical Manufacturers Association -- on November 16 filed a second lawsuit against the City of San Francisco, aiming to prevent the City from protecting children from toxic chemicals in toys.
San Francisco passed a law in June prohibiting the sale of toys containing six toxic chemicals called phthalates (tha-lates) and another toxicant called bisphenol-A. In October, the ACC and other corporations sued the city in California state court, claiming that state law preempted the city's right to protect children by controlling toxics in toys.
The second lawsuit was filed in federal court and it claims that federal law preempts the city's right to protect its children from toxic chemicals in toys. Specifically, the ACC's complaint says the Federal Hazardous Substances Act, plus decisions by the Consumer Product Safety Commission, make it illegal for municipalities to pass laws to regulate toxic materials in toys.
This is a definite trend -- corporations trying to prevent local governments from passing laws to protect citizens against hazards and dangers created by corporations. In many instances the federal Congress is passing laws that prevent local governments from passing laws to curb corporate abuses. It's called "federal preemption."
We can draw three conclusions from this second lawsuit:
1. This is a major attack on the precautionary principle. The American Chemistry Council has hired a fancy law firm to pursue this case. Clearly the ACC is putting a lot of money behind its effort to stop San Francisco from taking a precautionary approach to protecting children.
2. This lawsuit is a sign of just how powerful and bold corporations have become that they would sue San Francisco, asserting that corporations have the right to expose children to known poisons and there's nothing local governments or individual citizens can do about it. They are thumbing their noses at the Moms of the world and at everyone else who may try to protect children from chemical trespass.
3. There is one benefit from a lawsuit like this: It allows us to see clearly that the system we call "regulation" was set up not to protect citizens from harm, but to protect corporations from citizens who try to curb corporate power. The regulatory system doesn't regulate polluters -- it regulates citizens, by strictly limiting how they are allowed to respond to corporate abuse.