The opinion of the court was delivered by: PLATT
Plaintiffs seek a preliminary injunction against the defendants restraining them from the enforcement of Regulation 16 CFR 1500.18(a)(2) and defendants' banning Orders dated January 11, 1974 and August 23, 1974 issued thereunder and any other banning orders promulgated thereunder relating to plaintiffs' products.
On November 19, 1974, after hearing counsel for all parties, this Court issued a temporary restraining order granting plaintiffs the aforesaid relief pending its determination of this motion.
In their complaint for declaratory judgment and injunctive relief plaintiffs allege that the jurisdiction of this Court is based upon: (i) 28 USC § 1331(a) pertaining to civil actions arising under the Constitution, laws or treaties of the United States wherein the amount in controversy exceeds the sum or value of $10,000 exclusive of interest or costs and (ii) 28 USC § 1337 pertaining to civil actions arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.
The venue is proper, the plaintiffs claim, because one of the plaintiffs resides in this District and each defendant is an officer or employee of the United States or an agency thereof and no real property is involved in the action.
The statute involved is the Federal Hazardous Substances Act, 15 USC § 1261, et seq., and the regulation of the risks of injury thereunder has, with the enactment of the Consumer Product Safety Act on October 27, 1972, been transferred from the Secretary of H.E.W. to the defendant Commission herein.
Section 1261 (f)(1)(D) of the Federal Hazardous Substances Act provides that:
"(f) The term 'hazardous substance' means:
"(D) Any toy or other article intended for use by children which the Secretary by regulation determines, in accordance with section 1262(e) of this title, presents an electrical, mechanical, or thermal hazard."
Section 1261(s) of such Act provides that:
"(s) An article may be determined to present a mechanical hazard if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture presents an unreasonable risk of personal injury or illness (1) from fracture, fragmentation, or disassembly of the article, (2) from propulsion of the article (or any part or accessory thereof), (3) from points or other protrusions, surfaces, edges, openings, or closures, (4) from moving parts, (5) from lack or insufficiency of controls to reduce or stop motion, (6) as a result of self-adhering characteristics of the article, (7) because the article (or any part or accessory thereof) may be aspirated or ingested, (8) because of instability, or (9) because of any other aspect of the article's design or manufacture."
Section 1262(e) of the Act provides that:
"(1) A determination by the Secretary that a toy or other article intended for use by children presents an electrical, mechanical, or thermal hazard shall be made by regulation in accordance with the procedures prescribed by section 553 (other than clause (B) of the last sentence of subsection (b) of such section) of Title 5 unless the Secretary elects the procedures prescribed by subsection (e) of section 371 of Title 21, in which event such subsection and subsections (f) and (g) of such section 371 of Title 21 shall apply to the making of such determination. If the Secretary makes such election, he shall publish that fact with the proposal required to be published under paragraph (1) of such subsection (e).
"(2) If, before or during a proceeding pursuant to paragraph (1) of this subsection, the Secretary finds that, because of an electrical, mechanical, or thermal hazard, distribution of the toy or other article involved presents an imminent hazard to the public health and he, by order published in the Federal Register, gives notice of such finding, such toy or other article shall be deemed to be a banned hazardous substance for purposes of this chapter until the proceeding has been completed. If not yet initiated when such order is published, such a proceeding shall be initiated as promptly as possible."
Pursuant to the aforesaid Act, and on or about December 17, 1970, the Commissioner of Food and Drugs, under authority of the Secretary of H.E.W., issued Regulation 21 CFR 191.9a(a)(3) which is now known as 16 CFR 1500.18(a)(2) and which reads as follows:
"§ 191.9a. Banned toys and other banned articles intended for use by children
(a) Toys and other children's articles presenting mechanical hazards. Under the authority of section 2(f)(1)(D) of the act, and pursuant to provisions of section 3(e) of the act, the Commissioner has determined that the following types of toys or other articles intended for use by children present a mechanical hazard within the meaning of section 2(s) of the act because in normal use or when subjected to reasonably foreseeable damage or abuse, the design or manufacture presents an unreasonable risk of personal injury or illness: * * *
"(2) Any toy having noisemaking components or attachments capable of being dislodged by the operating features of the toy or capable of being deliberately removed by a child, which toy has the potential for causing laceration, ...