San Francisco Chronicle, October 26, 2006
CITY SUED OVER BAN ON CHILDREN'S PRODUCTS USING SUSPECT CHEMICALS
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 substances.
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 violations.
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 email@example.com.