Wimps And Super Robots Unite To Defend Popular Culture

The nation's popular culture is under attack, at least according to lawyers enforcing the Transformers and Diary of a Wimpy Kid trademarks in a pair of lawsuits filed on opposite ends of the country at the end of the year.  According to Hasbro, Inc., its Transformers brand is recognized in "many facets of the country's popular culture" and The New York Times has described one of its leading characters, Optimus Prime, as the "toughest robot in the nerd universe." Greg Heffley is an indisputable member of the nerd universe, as the middle-school-aged hero of the Diary of a Wimpy Kid books. According to Wimpy Kid, Inc., he had his "status as cultural icon" confirmed when a licensed balloon in his likeness was flown in New York's Macy’s Thanksgiving Day Parade. In late December, both companies filed suit against companies they believe are damaging their iconic brands and putting consumers at risk of confusion in the marketplace.

Hasbro filed suit in California Federal court against a Taiwanese laptop and computer-related products maker, alleging that Asus Computer International and ASUSTeK Computer are threatening the Transformers brand. Hasbro asserts that its Transformers and Transformers Prime marks - - which relate to toy robots that convert into various vehicles and a television series that was developed based on a character named Optimus Prime - - are being infringed by Asus' "Transformer" laptop and its "Eee Pad Transformer" and "Transformer Prime" computer products, and that Asus has diluted its trademarks, engaged in unfair competition and violated various provisions of California state law.

But Asus fired back: not so fast.  In court filings it has asserted that, while Hasbro has sought federal registration of the Transformers Prime mark, the application has not yet been granted. It also pointed out that both of the Hasbro marks were filed with the U.S. Patent and Trademark Office in international class 28, for “toy action figures, toy vehicles and toy robots convertible into other visual forms…” which are not what it sells.  Asus asserts that consumers paying $400-500 for high-end tablet computers from ASUS will not be confused that they are buying Hasbro licensed toys. So far, the Court has sided with Asus in denying Hasbro's request for expedited discovery but it has not yet weighed in on the merits.

Meanwhile, Wimpy Kid, Inc., owned by Diary of a Wimpy Kid author Jeff Kinney, filed suit against the Texas company Antarctic Press, Inc., in Federal court in Massachusetts, for publishing, advertising, and distributing books entitled “Diary of a Zombie Kid.” The complaint alleges that Antarctic committed trademark and trade dress infringement, trademark dilution, false designation of origin, copyright infringement, and various violations of Massachusetts state law. So far, the Wimpy Kid publisher appears to be keeping the Zombie Kid's publisher at bay and Antarctic has agreed to be enjoined from publishing or further distributing its Zombie Kid books. Of course, if popular culture teaches anything, it is that one should never count a zombie out of the fight.  The restraining order is only temporary and expires in early February.  Antactcic may reanimate the battle at any moment.

The cases are, respectively, Hasbro Inc. v. Asus Computer International, et al., U.S. District Court, Central District of California, Case No. 11-10437 (2011); and Wimpy Kid, Inc. v. Antarctic Press, Inc., U.S. District Court, District of Massachusetts, Case No. 11-12265 (2011).

IP Flapper Flap: The Rights to Betty Boop Rise Again.

In September, 1966, a singer named Helen Kane died in her apartment in Queens, NY. She began her career with the Marx Brothers and her greatest hits included "I Wanna Be Loved By You" and "Button Up Your Overcoat."  At the height of her career in the 1920s and 30s she was known as the "boop-boop-a-doop" girl.  In her obituary, the New York Times described her as having "converted a babyish singing voice into a fortune and lost the fortune in a dress firm bankruptcy."

In 1932, Ms. Kane filed a lawsuit against Max Fleischer, the creator of the character "Betty Boop," as well as Fleischer Stutios Inc. and Paramount-Publix Corporation. Kane described herself as an actress "who uses in her speech and songs an exaggerated lisp and a childish voice and manner." In her lawsuit, Kane alleged that Betty Boop was a caricature of her, sought an injunction prohibiting the defendants from exhibiting Betty Boop cartoons, and requested $250,000 in damages.

The case went to trial in 1934 and included a day of screening Ms. Kane's film, "Dangerous Nan McGrew" and various Betty Boop cartoons. However, after three weeks, Justice Edward J. McGoldrick dismissed the complaint based on Kane's failure to prove the causes of action based on the alleged misappropriation of her style of singing and acting. The case was affirmed on appeal. Kane v. Fleischer, 248 A.D. 554, 288 N.Y.S. 1046 (N.Y.A.D. 1 Dept., 1936).

Nearly eighty years later, Fleischer Studios is now in court fighting over its own alleged rights to Betty Boop. Last winter, the Ninth Circuit Court of Appeals affirmed a trial court's grant of summary judgment, which had held that Fleischer did not own a valid copyright or trademark in the Betty Boop cartoon character.

The dispute in that case concerned a group of defendants that license Betty Boop merchandise, some of which are based on vintage movie posters. The defendants challenged Fleischer Studios assertion that it owned the subject trademark rights and copyright rights or that they were infringing them. Among other things, the district court held that - although Fleischer Studios proved it owned the registered word mark, "Betty Boop" and had used the mark on merchandise mark - there was no evidence that any of the defendants’ uses of poster artwork represented a use of Plaintiff’s word mark in commerce.

The case set off alarm bells in the intellectual property community, not for this evidentiary issue, but over concerns about the manner in which the Ninth Circuit analyzed the issues involving trademark protection for copyrightable images, the trademark concept of "asethetic functionality" and issues of waiver that the court addressed in dismissing a chain of title argument.

Under the court's trademark functionality analysis, it found that Fleischer Studios had been using Betty Boop as a functional product and not as a trademark. The "aesthetic functionality" concept concerns whether purely aesthetic and ornamental features of a product may be functional because of a perceived competitive need to copy the ornamental features. The doctrine has been widely criticized, rejected by some courts, and many commentators and trademark holders are seeking to narrow or eliminate its applicability altogether.  The Court also noted in dicta that a copyrighted work that falls into the public domain cannot thereafter be protected as a trademark. This raised eyebrows in some circles, particularly those who have interests in copyrighted characters that are also protected by trademark law.

Many have been pleading with the court to rehear the case and entities no less than Tarzan's Edgar Rice Burroughs, Inc., Major League Baseball Properties, Inc., NBA Properties, Inc., NHL Enterprises, L.P., Collegiate Licensing Company, the International Trademark Association, and the Motion Picture Association of America, Inc. have gone on the record, filing amicus briefs with the court.

Two weeks ago the court ordered the parties to further brief issues concerning the legal bases for the district court's statement that the defendants' use of poster artwork does not represent a use in commerce of Fleischer's trademark for the word mark "Betty Boop," which the court noted could be relevant to resolving the appeal. The briefs are expected this week.

Unfortunately for Helen Kane's ghost, the word "irony" is a registered trademark.  But perhaps she's up there somewhere smiling anyway.

Watch this space for further developments.

The Ninth Circuit's opinion in Fleischer Studios, Inc., v. A.V.E.L.A., Inc. et al., Case No. 09-56317 (9th Circuit, February 23, 2011) is available here.

Jury Awards MGA $88 Million in Barbie-Bratz Dispute

In the latest round in the six-year old rock'em-sock'em intellectual property bout between the makers of Barbie and Bratz dolls, a federal jury has awarded MGA Entertainment damages of more than $88 million for misappropriation of trade secrets, while rejecting Mattel, Inc.'s claims against MGA for copyright infringement.

The dispute involves competing claims of intellectual property violations arising out of the design of the Bratz doll for MGA by Carter Bryant, a one-time Mattel employee who designed fashions and hair styles for its Barbie doll. In 2000, while still at Mattel, Bryant pitched his idea for the Bratz line of dolls to two MGA employees. The pitch was successful and, on October 4, 2000, Bryant gave Mattel two-week notice and signed a consulting agreement with MGA. Bryant contended that he worked on the idea on nights, weekends and when he was otherwise off-the-clock. The Bratz line proved very successful for MGA.

Mattel filed suit against MGA for copyright infringement and related claims. MGA responded with a counterclaim against Mattel for misappropriation of trade secrets byway of corporate espionage. MGA alleged that Mattel had operated a “market intelligence” department for more than a decade, that its employees had printed fake business cards to gain access to competitors' private showrooms, and that Mattel misappropriated confidential information about competitors' toys that were not yet on the market, including their appearance, operation, intended play patterns, price lists, and advertising plans and strategies.

The eight-person jury unanimously rejected Mattel's claims for copyright infringement and found that Mattel did not own the rights to either the Bratz dolls or their early models or sketches. The jury also found that MGA did not misappropriate Mattel's trade secrets.

The jury awarded damages on 26 of the 114 trade secrets MGA had accused Mattel of misappropriating. MGA may still recover its attorneys fees and an award of punitive damages based on the jury's finding that Mattel's conduct was willful and malicious.

In a hollow victory for Mattel, the jury also found that MGA had intentionally interfered with its contractual relations with Carter Bryant. Mattel was awarded $10,000 for those claims. The Barbie maker is expected to appeal.

The case is Bryant v. Mattel, 04-09049, U.S. District Court, Central District of California.

Silly Bandz Distributor Sues Wal-Mart For Copyright And Trade Dress Infringement

Are they rubber bands or jewelry? Silly Bandz, those ubiquitous colorful silicone bands being donned by children in schoolyards across the country, lie at an important intersection of intellectual property law. They are similar to rubber bands but are worn like bracelets and when removed they revert to their original shapes – which can include superheroes, animals, athletes, sports team logos, numbers, letters, and so on. Kids wear them on their forearms by the dozen and there is a burgeoning underground market of playground band-trading among even the youngest of capitalists.

Silly Bandz are distributed by Ohio-based BCP Imports, LLC ("BCP"), which also offers a variety of related products, such as Silly Ringz and SillyBandz Necklaces. For fashionable mountain climbers, they even offer SillyBandz Caribinerz. Silly Bandz are generally sold in packages grouped by subject matter. For example, BCP offers packs that include "princess" "western" and "dinosaur" themes, as well as scores of licensed characters and other subjects.

BCP has been selling Silly Bandz for the last two years. It claims its groupings of bands has qualified them for copyright protection. BCP also has obtained a trademark registration for its word mark SILLYBANDZ (registered as a single word) and alleges that it has secured trade dress rights for its packaging. (Trade dress is an offshoot of trademark law.) BCP describes this packaging as "clear plastic 'pillow-shaped' packages with a generally rectangular label located near the top of the package" with a label that "bears a 'wave' background design." (BCP does not appear to have obtained a registration for its package design.)

The vast popularity of its products has led to frequent copying by competitors. The latest result: BCP is now suing defendants Wal-Mart Stores, Inc. ("Wal-Mart") and Crimzon Rose International, LLC ("Crimzon") for copyright infringement, trade dress infringement and unfair competition based on allegations that Wal-Mart and Crimzon are selling knockoffs. As a result, BCP claims it has lost sales and profits and suffered harm to its business.

BCP has alleged a claim for copyright infringement under section 501 of the Copyright Act, asserting that the defendants improperly are selling copies of its copyrighted products, including its packs of "Princess," "Rain Forest" and "Rocker" bands. Presumably BCP is asserting that its selection, coordination, or arrangement of the individual bands into the different collections is original and creative enough to qualify for copyright protection as a collective work. However, the complaint is not explicit on this point. (At this stage Wal-Mart could argue that, as alleged, the subject works do not meet the minimum threshold for originality to qualify for copyright protection in the first place, and that merely grouping the bands according to their subject matter does not constitute an original work of authorship.)

BCP has also alleged that the defendants have engaged in trade dress infringement, under section 43(a) of the Lanham Act, asserting that BCP's pillow-shaped package is widely recognized by consumers and has become a valuable indicator of the source and origin of Plaintiff’s products. BCP further alleges that the defendants use of a similar pillow-shaped packaging is confusingly similar to BCP's packaging and likely to cause confusion among consumers.

Surely there is a functionality argument to be made on this point, as trademark protection is generally not afforded to functional product designs. In a trade dress case, the plaintiff must show that it owns a protectable trade dress that is not functional; that the trade dress is either inherently distinctive or has acquired distinctiveness through secondary meaning (meaning that consumers have come to associate the product's design with a particular company); and that the defendant's trade dress creates a likelihood of confusion as to the source, affiliation, connection to or sponsorship of the product. At the very least, there appear to be several functional arguments that Wal-Mart could assert as to the Silly Bandz packaging.

Interestingly, BCP is not suing for infringement of the design of the individual bands - at least at this point. But that is likely because the copyrights of the licensed logos and characters probably are not BCP's to protect. Moreover, BCP would face an uphill battle on that front for its other designs, given the limited intellectual property protection generally afforded to fashion products.

Copyright protection is generally not afforded to fashion designs because they are considered "useful articles" that are not protected unless the creative elements can be conceptually separated from the utilitarian nature of the product; trademark protection is generally not afforded to fashion designs - as opposed to the labels themselves - because trademark law does not ordinarily protect functional products and there is a public policy interest of encouraging competition in the clothing of humans; there is some limited design patent protection that has traditionally been afforded to sneaker manufacturers, but BCP has not alleged it has obtained any design patents for its products.

However, BCP's complaint shies away from using the word "bracelet" and characterizes its products as "elastic bands". It may be employing an overall strategy of characterizing its products as something other than fashion in preparation for the day when it asserts trade dress protection for some of its individual designs, either in this case or another lawsuit.

Unfortunately for BCP, Wal-Mart has a history of vigorously defending against allegations of trade dress infringement. See Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000) (in which Wal-Mart battled its way to the U.S. Supreme Court, which ultimately found that Wal-Mart's copying of a competitor's clothing design did not violate the competitor's trade dress rights because product design can never be inherently distinctive and the competitor had not proved the necessary element of secondary meaning). Unlike that case, however, here it is the product packaging that is at issue - rather than the design of the product itself - which at least offers a potentially viable theory of recovery for BCP. (One of my recent posts about trade dress in product packaging is available here.) Moreover, BCP might argue it has obtained secondary meaning for its products and its packaging by this point.

Neither Wal-Mart nor Crimzon has yet answered the Complaint, and it is not clear if BCP has yet served them. Watch this space for further developments.

The complaint in BCP Imports, LLC v. Wal-Mart Stores, Inc. et al. can be found here.

Bratz-Barbie Doll Copyright and Trademark Dispute Continues: Ninth Circuit Denies Mattel's Petition For Rehearing

The Bratz – Barbie doll battle continues in a dispute between their respective owners, MGA Entertainment, Inc. and Mattel, Inc. On October 21, 2010, the U.S. Court of Appeals for the Ninth Circuit denied Mattel's petition for rehearing of its decision of last Summer.

The effect is that the Ninth Circuit's earlier ruling in favor of MGA will essentially remain intact and Mattel will have to prove its case at trial rather. (The ruling denied Mattel's petition to have the case reheard by the Ninth Circuit's three judge panel that heard the case originally or by a larger panel of the Court.)

The case involves copyright and trademark issues arising out of the design of the Bratz doll for MGA by Carter Bryant, a one-time Mattel employee who designed fashions and hair styles for its Barbie doll. In 2000, while still at Mattel, Bryant pitched his idea for the Bratz line of dolls to two MGA employees. The pitch was successful and on October 4, 2000, Bryant gave Mattel two-week notice and signed a consulting agreement with MGA. Bryant contended that he worked on the idea on nights, weekends and when he was otherwise off-the-clock. The Bratz line proved very successful for MGA.

Multiple lawsuits ensued, which were consolidated and divided into two phases. Phase 1 involved claims related to Bratz' ownership, including copyright and trademark claims. This case concerned an interlocutory appeal of the equitable orders entered at the conclusion of that phase. (Phase 2 remains pending.)

In Phase I, Mattel prevailed in the trial court on virtually every point. The jury had found that Bryant thought of the “Bratz” and “Jade” names and that he had created the preliminary sketches and sculpt while he was still employed by Mattel. It also found that MGA committed three violations of state-law relating to his involvement with Bratz. It issued a general verdict that found MGA liable for infringing Mattel’s copyrights in Bryant’s preliminary Bratz works.

Although Mattel sought more than $1 billion in copyright damages, the jury awarded it only about 1% of that amount ($10 million), perhaps because it found only a small portion of the Bratz dolls were infringing. The district court then entered equitable relief based on the jury’s findings. In July 2010, the Ninth Circuit reversed and ruled in MGA's favor.

With respect to the trademark claims, the trial court had imposed a constructive trust over all trademarks, and essentially transferred MGA's entire Bratz trademark portfolio to Mattel. As for the copyright claims, the court issued an injunction prohibiting MGA from producing or marketing virtually every Bratz female fashion doll.

Some issues concerned an employment agreement Bryant had signed with Mattel, which assigned inventions created during his employment with the company to Mattel. However, Bryant's job did not include creating new doll lines. The Ninth Circuit reversed the trial court and found that the contract was ambiguous as to whether it resulted in an assignment of everything Bryant invented during his working hours, or everything he invented during the entire calendar period of his employment with Mattel - even if what he invented was outside the scope of his employment. Thus, the trial court should have submitted to the jury the issue of whether or not his work on nights and weekends on the Bratz line fell within the scope of the contract.

The Ninth Circuit also vacated the trial court's copyright injunction. It addressed the copyright analysis and explained the parameters the trial court should have considered in evaluating the protectable and unprotectable elements of the designs, and the differences between the copyrightable expression of ideas and the noncopyrightable ideas themselves.

The Ninth Circuit also reversed the trial court's trademark rulings. The issue of whether Bryant's employment agreement with Mattel covered Bryant's ideas for the "Bratz" and "Jade" names, which were part of the trademark portfolio, the Ninth Circuit found it was error to hold that Bryant's employment agreement "unambiguously" covered those ideas and that it necessarily assigned them to Mattel. The trial court further abused its discretion in transferring the entire Bratz trademark portfolio to Mattel the Ninth Circuit found these issues should have been decided by a jury at trial. Thus, the Ninth Circuit also vacated the constructive trust and other equitable relief concerning Mattel's rights to the Bratz trademarks.

The court warned that a narrower constructive trust could only be imposed if there was a proper determination that Mattel owned Bryant's ideas; and that it could only issue a copyright injunction if the Bratz "sculpts," which were used in manufacturing the Bratz dolls, were "virtually identical" to a preliminary sculpt that Bryant created before he left Mattel. The court also suggested that most, if not all, of the case that was tried to a jury might need to be retried in light of its opinion.

As a result of the Ninth Circuit's ruling last week, its July 2010 ruling stands (other than a few changes in which the court amended four lines of the prior 25 page opinion). The case will be returned to the trial court for a jury trial.

The Ninth Circuit's opinion in MGA Entertainment, Inc. v. Mattel, Inc., 9th Cir. Case. No. 09-55673 (Oct. 21, 2010) is available here.

Would You Rather... Go To Trial? Ninth Circuit Reverses Order Cancelling Board Game's Registered Trademark

The U.S. Court of Appeals for the Ninth Circuit today reversed a trial court's grant of summary judgment, in case concerning the scope of Federal trademark protection for the registered mark "WOULD YOU RATHER...?" for board games and books.

Falls Media, LLC, Justin Heimberg, and David Gomberg (Falls Media) had federally registered that mark with the united States Patent & Trademark Office. A dispute arose when Zobmondo Entertainment, LLC (Zobmondo) also began to use the mark on similar products.

The two companies were competitors and both were using the mark on board games and books that incorporate questions posing humorous, bizarre, or undesirable choices. (For example, one of Falls Media's sample question asks, “Would you rather be able to expedite the arrival of an elevator by pressing the button multiple times or have the ability to sound incredibly natural and sincere on answering machines?”) By 2008, both companies were operating successful businesses earning millions of dollars in revenues from sales of “WOULD YOU RATHER . . .?” products.

Falls Media filed a complaint alleging trademark infringement, unfair competition, and related claims. Zobmondo took the position that there could be no claim for trademark infringement because the mark was not valid and could not be protected by trademark law. Zobmondo moved for summary judgment, arguing that there were no genuine factual disputes that would permit Falls Media to go to trial on the relevant issues, and that Zobmondo was entitled to judgment as a matter of law.

The district court agreed with Zombondo and rejected Falls Media’s lawsuit, holding that “WOULD YOU RATHER . . . ?” is not entitled to federal trademark protection because the mark is “merely descriptive” and lacks secondary meaning as a matter of law. The court entered summary judgment in favor of Zobmondo and ordered cancellation of Falls Media's registration. Falls Media appealed.

On appeal, the Ninth Circuit found triable issues of fact and determined that in light of the factual disputes, it could not be said as a matter of law that the mark was merely descriptive.

Trademark law is concerned with avoiding confusion among consumers and primarily focuses on the identification of the source of particular goods or services. In a trademark infringement lawsuit, the a plaintiff is required to prove it has a “valid, protectable trademark.” Trademark validity is generally an intensely factual issue. In order for a trademark to be valid and protectable, it must be “distinctive.” In this context, distinctiveness is intended to measure the "primary significance" of the mark to prospective purchasers. Marks are generally classified in one of five categories of increasing distinctiveness: (1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, or (5) fanciful.

Which marks belong to which categories is generally a question of fact. Suggestive, arbitrary, and fanciful marks are considered “inherently distinctive” and are automatically entitled to federal trademark protection because “their intrinsic nature serves to identify a particular source of a product.” Generic marks, on the other hand, are not eligible for trademark protection. "Merely descriptive" marks fall somewhere in between: they are not entitled to automatic protection because they are not inherently distinctive, although a merely descriptive mark can acquire distinctiveness over time and can then can become protectable. This is called "secondary meaning.”

In this case, the court found that the registration entitled Media Falls to a presumption of validity, and explained the significance of the two tests that are used to provide guidance in differentiating between marks that are "suggestive" and those that are "merely descriptive," an issue that was critical to the analysis that had been employed by the district court. Those tests are known as the "imagination test" and the "competitors’ needs test."

The imagination test is the primary, and most frequently used, test. It asks whether “imagination or a mental leap is required in order to reach a conclusion as to the nature of the product being referenced.” Falls Media argued that a multistage reasoning process was required to link the mark to the “essential nature of these products . . . that the choices are ridiculous, bizarre, or themed and that they are limited to a two-option format.” The district court disagreed and determined that under this test, “WOULD YOU RATHER . . . ?” is merely descriptive because it requires “no imaginative or interpretive leap to understand that this phrase is the main aspect of the game to which it is affixed.”

The Ninth Circuit rejected Falls Media's argument, at least in part. It explained that the test is not concerned with what information about the product could be derived from a mark, rather, it is concerned with whether “a mental leap is required“ to understand the mark’s relationship to the product.

But the Ninth Circuit also concluded that the district court had erred in concluding that the imagination test indicates that the mark is merely descriptive as a matter of law. No consumer surveys were taken, the mark as a whole was not included in any dictionary, and there is no literal meaning of the phrase “WOULD YOU RATHER . . . ?” (particularly given that the words precede an ellipse). Thus there was insufficient evidence to allow the court to conclude precisely what consumers might understand the phrase “WOULD YOU RATHER . . . ?” to mean.

As for the competitors’ needs test, the trial court had found it difficult to apply and declined to consider it. The Ninth Circuit found this to be reversible error in light of the significant evidence Falls Media had introduced to suggest that its competitors do not need to use “WOULD YOU RATHER . . . ?” to fairly describe their products. Zobmondo itself identified 135 possible alternative names for its game during development and, at one point, had even marketed its game and a related book using the alternative name, “The Outrageous Game of Bizarre Choices,” rather than using the subject mark). There was also evidence that another board game company used the name “Would You Prefer?” on a similar game during the same time period.

The fact that Zobmondo had also filed its own trademark applications for the mark were also considered potential admissions that there was validity to at least some of the elements of the Falls Media marks. At the very least, the court found, there were factual issues and Falls Media was entitled to a trial on those issues.

Accordingly, the appellate court reversed the trial court's grant of summary judgment as well as the order directing cancellation of the mark, and remanded the case for trial.

The full text of the opinion is available on the Ninth Circuit's website.

Toy Safety & the Toxic Chemicals Safety Act of 2010

On April 15, 2010, new legislation was proposed to amend the 1976 Toxic Substances Control Act (TSCA) to enhance the federal regulation of chemicals.

House Energy and Commerce Chairman Henry Waxman (D-CA) and Representative Bobby Rush (D-Ill.) announced a draft proposal for the House and Senator Frank Lautenberg (D-NJ) announced companion legislation for the Senate.

The proposed legislation clearly has serious ramifications for the toy industry. The Toy Industry Association Institute (TIA) responded with a statement explaining its support for "a federal approach to chemical regulation and supports TSCA reform that is based on sound science and risk assessment," while offering certain criticisms, including concern that a preemption provision would allow various states to adopt their own regulations, which could lead to "a patchwork of state laws that would make it difficult for companies to bring products to the marketplace."

Among the changes in the proposed new legislation:

● It proposes to strengthen the EPA’s authority to compel testing by the chemical industry.

● It proposes to require manufacturers, prior to manufacturing, to provide data concerning the safety of new chemicals, or new uses of existing chemicals, that could pose risks to health or the environment. (The existing TSCA requires the federal government to show chemicals are harmful before manufacturers may be prohibited from using them.)

● It would establish a Children’s Environmental Health Research Program to further the understanding of the vulnerability of children to chemical substances and mixtures.

● It would establish a program to create market incentives for the development of safer alternatives to existing chemical substances and mixtures in order to reduce or avoid using or generating hazardous substances.

● It would require the EPA to cooperate in international efforts.

A section by section analysis of the proposed Act is available here.