The opinion of the court was delivered by: Barry, District Judge.
Plaintiff United States of America alleges that defendant
Toys "R" Us, Inc. ("Toys `R' Us"), an importer, distributor,
and retailer of children's toys and other articles; defendant
Charles Lazarus ("Lazarus"), Chairman of the Board and Chief
Executive Officer of defendant Toys "R" Us; and defendant
Michael Goldstein ("Goldstein"), Executive Vice-President of
defendant Toys "R" Us with supervisory responsibility,
inter alia, for the importation and distribution of children's
toys and other articles, violated the Federal Hazardous
Substances Act ("FHSA"), 15 U.S.C. § 1261 et seq., and the
Consumer Products Safety Act ("CPSA"), 15 U.S.C. § 2051 et seq.
Plaintiff now moves for an injunction,*fn1 pursuant to
Federal Rule of Civil Procedure 65, prohibiting defendants from
(1) introducing or delivering for introduction in interstate
commerce, or receiving in interstate commerce and delivering or
proffering delivery of children's toys and other articles which
qualify as banned hazardous substances under the FHSA; and (2)
offering for sale, distributing in commerce, or importing into
the United States children's toys and other articles which are
banned hazardous products as defined by the CPSA.*fn2
Defendants move for summary judgment, pursuant to Fed.R.Civ.P.
56, and for sanctions, pursuant to Fed.R.Civ.P. 11. For the
reasons that follow, plaintiff's motion for an injunction will
be denied and, because no further relief is sought, the
complaint will be dismissed. Defendants' motion for sanctions
will be denied, and defendants' motion for summary judgment
will be denied as moot.
II. THE ALLEGED VIOLATIONS
Plaintiff alleges two violations of the CPSA and eleven
violations of the FHSA. More specifically, it contends that
defendants offered for sale, distributed in commerce, and
imported into the United States (1) the "Music Maker;" and (2)
the "Music Master Xylophone," musical children's toys that are
coated with "lead-containing paint" and, thus, are banned
hazardous products under the CPSA, in violation of
15 U.S.C. § 2068(a)(2). It contends, as well, that defendants introduced
or delivered for introduction into interstate commerce or
received in interstate commerce (1) the "Cutie Pie Deluxe Gift
Set;" (2) "Pop Up Pals;" (3) "Sesame Street, Wind Up Ernie the
Drummer;" (4) the "Pull Back Plane;" (5) the "Pull Back Train;"
and (6) the "Pull Back Truck," a selection of children's toys
that fail to comply with the CPSC's regulation concerning the
production of small parts after prescribed use and abuse tests
and, thus, comprise banned hazardous substances under the FHSA,
in violation of 15 U.S.C. § 1263(a) & (c).
Finally, plaintiff contends that defendants introduced or
delivered for introduction into interstate commerce or received
in interstate commerce (1) the "Crib Pals Shake & Twist
Rattle;" (2) the "Crib Pals Kitty Cat Lion Rattle;" (3) the
"Crib Pals Tiny Tinkers 3 Piece Rattle Set" of which the "Crib
Pals Tiny Tinkers Rattle Copter" is a part; (4) the "Baby Toy
`Wooden Shaky Head' Rattle;" and (5) "Crib Pals Play Shapes,"
an assortment of rattles that fail to comply with the test
criteria for rattles as promulgated by the Consumer Products
Safety Commission ("CPSC") and, thus, constitute banned
hazardous substances under the FHSA, in violation of 15 U.S.C. § 1263(a)
Where, as here, an injunction is sought pursuant to statutory
provisions, the movant must establish (1) a violation of the
statute sued upon; and (2) a reasonable likelihood of future
violations of the statute in the absence of injunctive relief.
United States v. Focht, 882 F.2d 55, 57 (3d Cir. 1989).
1. Consumer Products Safety Act
A person violates the CPSA by "manufactur[ing] for sale,
offer[ing] for sale, distribut[ing] in commerce, or import[ing]
into the United States any consumer product which has been
declared a banned hazardous product by a rule under this
chapter." 15 U.S.C. § 2068(a)(2). Any children's toy or related
article bearing "lead-containing paint" — i.e. "paint . . .
containing lead or lead compounds and in which the lead content
(calculated as lead metal) is in excess of 0.06 percent by
weight of the total nonvolatile content of the paint or the
weight of the dried paint film," 16 C.F.R. § 1303.2(b)(2) —
constitutes a banned hazardous product under the CPSA. 16
C.F.R. §§ 1303.1(a)(1) & 1303.4(b). Defendants do not dispute
laboratory reports submitted by plaintiff which indicate that
the "Music Maker" and the "Music Master Xylophone," toys
imported into the United States and offered for sale and
distributed in commerce by defendant Toys "R" Us, were covered
with paint containing in excess of 0.06% lead by weight in a
dry paint film. See Nelson Decl. at Exhs. 19 & 21.
Instead, defendants rely upon a statutory exception to
15 U.S.C. § 2068(a)(2). Subsection (a)(2) does not apply to
any person . . . who holds a certificate issued in
accordance with section 2063(a) of this title to
the effect that such consumer product conforms to
all applicable consumer product safety rules,
unless such person knows that such consumer
product does not conform. . . .
15 U.S.C. § 2068(b). Therefore, 15 U.S.C. § 2068(a)(2) is
inapplicable where the alleged violator, in addition to lacking
actual knowledge of non-compliance with the safety rules,
possesses a certificate which
shall certify that such product conforms to all
applicable consumer product safety standards, and
shall specify any standard which is applicable.
Such certificate shall accompany the product or
shall otherwise be furnished to any distributor or
retailer to whom the product is delivered. Any
certificate under this subsection shall be based
upon a test of each product or upon a reasonable
testing program; shall state the name of the
manufacturer or private labeler issuing the
certificate; and shall include the date and place