Lead in Dolls Raises Pre-emption Question

Toymaker Ty Inc. averted a court fight and what would have been the first test of Illinois' strict lead-in-toys law when it backed down and removed its lead-tainted Jammin' Jenna dolls from store shelves in the state.

The Westmont, Ill.-based company had contended that the dolls complied with federal safety standards and that those take precedence over state law. But in January, the Illinois attorney general's office threatened to sue the toymaker, and Ty decided to replace the dolls with another version that meets the state standards rather than face litigation.

Meanwhile, the issue of whether states can set lead limits on toys may extend beyond Illinois. In January, Michigan rolled out a package of new state laws that call for fines of up to $50,000 for companies that sell toys containing high levels of lead. As in Illinois, Michigan's standards ban children's products with lead levels above 600 parts per million.

"General counsel have to figure out how to prevent products, especially toys that contain lead, from being recalled at both the federal and state level, and getting there will require setting [lead content requirements] that will be tougher than federal standards and any state standards that are economically and physically feasible," says Christopher Smith, partner at Sonnenschein. "These standards will also have to be pushed down the supply chain so that when the holidays come this year, there will not be any threats to a company of any legal action regarding lead content in toys."

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Yesenia Salcedo

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