concurring:
I concur in the opinion in every respect, and write separately only to underline an aspect of this case that is implicit in the opinion.
The outcome of this appeal is compelled by the CPSC’s administrative classification of Rainbow Foam Paint as a banned hazardous substance within the meaning of the Federal Hazardous Substance Act. As the opinion carefully sets forth, the CPSC has power and discretion to do that: the statute classifies flammable substances as hazardous, and exempts toys in which a hazardous substance is functionally required only if intended for use by children who (inter alia) can “read and heed” the warning; and the relevant CPSC regulation exempts art materials and the like only if they bear adequate warnings. However, Ms. Weill contends — and the United States does not dispute — that the CPSC has in the past relied on parents and teachers to act on the warning labels affixed to art supplies, and has not previously exercised its discretion to ban art materials on the ground that the small children who may use the glue *99or the scissors cannot “read and heed” the warnings. The CPSC’s action in this case is therefore a departure from its practice of granting exemptions for a wide variety of products, ranging from art materials such as glues and paints to firecrackers (16 C.F.R. § 1500.85(a)(2)) and alcohol-based fuels (16 C.F.R. § 1500.85(a)(5)). In each case, it is clear that some children who cannot “read and heed” the warning will nevertheless be given these products, to be used under appropriate adult supervision. In this case, the CPSC acts for the first time on the assumption that the adults who buy art materials and give them to small children cannot be relied upon to read the label and implement its warnings.
It may seem odd that the CPSC would initiate this policy in order to ban a finger paint, composed of shaving cream and vegetable coloring, on the ground that it is hazardous when sprayed into “a vertical flame of 12-14 inches” (A-86). Why finger paint would entail a greater fire hazard than, say, the paper to which it is applied, seems unaccountable. The only explanation in the record for this regulatory assault on finger paint is the threat by Ms. Weill’s company to sue Consumers Union for publishing what Consumers Union conceded to be a damaging and erroneous safety advisory. In response to that threat, Consumers Union backed away from its proffered retraction, and invited regulatory action by the CPSC — action that would (not incidentally) insulate Consumers Union from liability. It is evident that the CPSC or its staff undertook this regulatory initiative to forestall a private litigation by Linda Weill and her company against Consumers Union. The squashing of Linda Weill and X-Tra Art, Inc. by the CPSC seems to me to be a sinister exercise of discretion.