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UNITED STATES v. ARTICLES OF BANNED HAZARDOUS SUBS

July 12, 1985

UNITED STATES OF AMERICA, Plaintiff, against ARTICLES OF BANNED HAZARDOUS SUBSTANCES CONSISTING OF 1030 GROSS (MORE OR LESS) OF BABY RATTLES, Defendants


The opinion of the court was delivered by: GLASSER

FINDINGS OF FACT AND CONCLUSIONS OF LAW

GLASSER, United States District Judge:

 The United States seized defendant baby rattles on November 16, 1983, on the grounds that they violate standards established by the rattle regulations, 16 C.F.R. Pt. 1510 (1985), enacted under Federal Hazardous Substances Act (FHSA), 15 U.S.C. § 1261 et seq., and are therefore banned hazardous substances. 15 U.S.C. § 1261(q)(1)(A). The government seeks destruction of the rattles. Claimant M. Pressner & Co., the importer and distributor of the defendant rattles, challenges the seizure, arguing that the rattle regulations do not cover these items. Alternatively, claimant argues that even if the rattles are banned hazardous substances, they may be exported under the FHSA. 15 U.S.C. §§ 1264(b), 1265(a). Claimant requests the return of the rattles so that it may export them.

 For the reasons discussed below, I find that the defendants are "rattles" covered by the rattle regulations. Moreover, I find that defendants do not meet the standards set by the rattle regulations and are therefore banned hazardous substances under the FHSA. In addition, because the rattles will be no less hazardous abroad than they are in this country, and because there is no statutory authority mandating the export order sought by claimant, there is every reason to respect the express policy of the Consumer Products Safety Commission (CPSC) prohibiting export of products that violate FHSA standards or regulations if they have moved or been sold in domestic commerce. The rattles are therefore condemned and must be destroyed. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, I hereby make the following findings of fact and conclusions of law.

 I. Findings of Fact

 Claimant M. Pressner & Co. is an importer and manufacturer of novelties and party goods. Tr. 47. During the late 1970s, it began importing and distributing in domestic commerce the two types of rattles that are defendants in this action. Id. One, claimant's model no. 56896, is a plastic, 2 1/2 inch ball and stem rattle of the traditional "lollipop" design. Tr. 49 (stipulation of parties). The other rattle, marketed by claimant as model no. 03456, is 2 inches long and has a heart-shaped head and a ring handle. During the years 1980-82, it was advertised in the "Toy" Section of claimant's catalogs, which contain separate sections for toys and party goods. Tr. 50, 57. Both models make noise when shaken. They were sold to craft and party supply stores, Tr. 53, for use as favors or tie-on decorations in corsages, on gifts, and on cakes. Tr. 50-51, 56. The party goods retailers either sold the items directly to consumers or attached them to corsages, cakes, etc., before sale. Claimant's Proposed Findings of Fact at 2.

 In August and September 1982, the CPSC collected five rattle samples from claimant's warehouse in Brooklyn and from a party goods store in Mt. Vernon that is one of claimant's customers. The CPSC subsequently informed claimant, in a letter dated October 19, 1982, that of the four samples that fell within the scope of the regulations, *fn1" all failed to meet the test criteria set forth in 16 C.F.R. § 1510.3. The CPSC requested that claimant recall the lollipop shaped model (no. 56896) because it was more likely to be given to children, Tr. 12-13, and that claimant cease distributing the other three models.

 In response, claimant asserted both that the rattle regulations did not apply to the samples and that the rattles did not pose the impaction or choking hazards that the regulations were designed to remedy. Letter of Aaron Locker to CPSC, November 8, 1982. On November 15, 1983, the government brought this action, seeking a decree of condemnation under 15 U.S.C. § 1265(a). Pursuant to an arrest warrant in rem, the United States Marshal seized defendant rattles at claimant's warehouse on the following day. At the time of the seizure, defendants were not marked for export. See Claimant's Proposed Findings of Fact, P 11 (claimant intended to mark cartons for export).

 Claimant continued to advertise one of the rattle models that are the subject of this suit, and to sell both models in interstate commerce, for approximately two months after it received the Commission's November 1982 letter. Tr. 64; Plaintiff's Exhibits 2(A)-2(K), 2(N)-2(S). Claimant agreed to stop distributing the rattles after it was informed that it would not have to recall the lollipop-shaped model. Tr. 63. *fn2" Nevertheless, claimant made four shipments of the rattle models after that date -- two to Puerto Rico on January 21 and August 24, 1983; one to Aruba, outside the Continental United States, on April 22, 1983; and one to Massachusetts on October 4, 1983. Tr. 66. Claimant did not inform the CPSC of the export shipment to Aruba. Tr. 66-67.

 There is ample evidence to support a finding that defendant rattles moved or were offered for sale in domestic commerce during 1983, prior to seizure. *fn3" Claimant advertised the rattles in its catalogs for 1980-1982, thereby offering them for sale. The fact that the rattles may have been dropped from the 1983 catalog *fn4" does not rebut the inference that the rattles moved and were offered for sale in commerce, in view of the number of actual shipments made during 1983, including one just a month before defendants were seized. See Plaintiff's Exhibit 2(T).

 In a letter dated May 17, 1984, claimant's President, Jerry Pressner, informed the Commission that the company intended to export the attached rattles to Venezuela, but said that it would not do so until this Court lifts the attachment order and permits the export. Claimant's Exhibit E. At that time, claimant also marked the rattles for export, to the extent that it was able to do so under the attachment order. Id.

 II. Conclusions of Law

 The first question presented is whether the seized rattles fall within the scope of the FHSA and the rattle regulations promulgated under that statute. The Act includes in its definition of a hazardous substance, "[a]ny toy or other article intended for use by children which the Commission by regulation determines . . . presents an electrical, mechanical, or thermal hazard." 15 U.S.C. § 1261(f)(1)(D) (1985). Toys or other articles intended for use by children that are hazardous substances under the Act are automatically banned from interstate commerce. Id. §§ 1261(q)(1)(A), 1263(a). *fn5"

 The rattle regulations, promulgated under the authority of 15 U.S.C. § 1262(e), define a rattle as "an infant's toy intended to be hand held, usually containing pellets or other small objects and which produces sounds when shaken." 16 C.F.R. § 1510.2 (1985). *fn6" The regulations were based on the results of investigations by the CPSC and the Canadian Consumer Commission into choking incidents among infants. Background Information to Proposed Rule, ...


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