Environment & Natural Resources

EPA has proposed a new rule to restrict the use of seven toluene diisocyanates (TDIs) in consumer products.  TDIs are commonly used in the production of polyurethanes found in foams, coatings, elastomers, adhesives and sealants used in consumer products.  Flexible foams (for cushioning) and rigid foams (for insulation) are the chief uses for TDI.

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Most everyone knows that the First Amendment restricts the government’s ability to limit commercial speech. Similarly, most everyone would probably think the First Amendment also restricts the government’s ability to compel commercial speech. But are there times when the government may compel commercial speech? Indeed it can in some circumstances, and the D.C. Circuit recently expanded those circumstances in American Meat Institute v. U.S. Department of Agriculture (AMI). AMI involved a trade association’s challenge to regulations requiring meat producers to include country-of-origin labels on their products. This decision is important to almost any company that is, or could be, subject to a regulatory mandate to disclose what the court calls “purely factual and uncontroversial information.”

Rehearing en banc a case decided in the government’s favor by a three-judge panel, the D.C. Circuit in AMI upheld the regulations, applying the test from the U.S. Supreme Court’s decision in Zauderer v. Office of Disciplinary Counsel. Zauderer upheld, against a First Amendment challenge, a state’s disciplinary action against an attorney whose advertisements had the potential to deceive consumers by failing to comply with state regulations mandating certain cost disclosures to prospective clients. Although the regulations concerning meat origins in AMI had nothing to do with countering consumer deception, the D.C. Circuit nonetheless applied Zauderer and thus extended its application beyond protection against consumer deception to the advancement of consumer edification.


Continue Reading To Label Or Not To Label? Companies May Have No Choice

The Federal Trade Commission (FTC) and U.S. Environmental Protection Agency (EPA) are both considering tightening rules governing the advertising of vehicle fuel economy. New federal regulations, however, may not stem the recent tide of consumer class actions alleging that auto manufacturers have misled consumers with inaccurate miles-per-gallon (MPG) claims.

Since 1975, the FTC has published its Fuel Economy Guide, which advises auto manufacturers and dealers to prominently disclose their vehicles’ estimated city and highway MPG whenever they make fuel economy claims 1 . These MPG estimates must be based on EPA-mandated testing procedures. 2 FTC began soliciting comments on revisions to its Fuel Economy Guide in 2009. In May 2014, FTC issued its most specific questions to date, inviting the public to comment on the following issues:


Continue Reading Stricter Rules for Fuel Economy Advertising Are on the Horizon, But Are Unlikely to Put the Brakes on Consumer Class Actions

The U.S. Consumer Product Safety Commission (CPSC) has released the risk assessment on phthalates conducted for the CPSC by a congressionally mandated Chronic Hazard Advisory Panel (CHAP). In the Consumer Product Safety Improvement Act, Congress charged the CHAP with making recommendations on whether the use of additional phthalates or phthalate alternatives in children’s toys and child care articles should be restricted as banned hazardous substances. The CHAP made the following specific recommendations in its assessment of the risks of 14 phthalates and six phthalate alternatives:

  • The interim ban on the use of diisononyl phthalate (DINP) in children’s toys and child care articles at levels greater than 0.1% be made permanent because DINP “induces antiandrogenic effects in animals, although with lesser potency than other active phthalates, and therefore can contribute to the cumulative risk from other antiandrogenic phthalates.”
  • The current interim bans on di-n-octylphthalate (DNOP) and diisodecyl phthalate (DIDP) be lifted because they do not appear to possess antiandrogenic potential but that U.S. agencies responsible for dealing with DNOP and DIDP exposures from food and child care products conduct the necessary risk assessments with a view to supporting risk management steps given other toxicological endpoints of concern.


Continue Reading Report on Phthalates Recommends Permanent Ban on DINP, Additional Permanent Bans on DIBP, DPENP, DHEXP, DCHP, and an Interim Ban on DIOP

Many experts agree the California public has become immune to the warnings on goods and premises required by Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. Instead of educating the public, the more notable outcome is a burgeoning cottage industry of plaintiff attorneys bringing frivolous “bounty hunter” enforcement lawsuits against businesses for minor or illusory violations of the statute. As a forthcoming report from the California Attorney General shows, 73 percent of all private settlement payments—totaling $12.7 million—went toward private enforcers’ attorney’s fees and costs in Prop 65 lawsuits settled in 2013. This trend prompted Gov. Brown to declare in May 2013 that Proposition 65 reform was necessary to end these “frivolous shakedown lawsuits.”

In response, California’s Office of Environmental Health Hazard Assessment issued proposed amendments to the regulation on March 7, 2014. Under these notional reforms, businesses operating or selling products in California would need to substantially change their warnings if their products or premises contain certain chemicals listed as “known” carcinogens or reproductive toxicants. OEHHA has claimed — with little support — that these changes will provide “more clarity to the Proposition 65 warning requirements and more specificity regarding the minimum elements for providing a ‘clear and reasonable’ warning for exposures that occur from a consumer product, including foods and exposures that occur in occupational or environmental settings.”

The opposite is likely to occur.


Continue Reading The Questionable Benefits of California’s Prop 65 Reform

A month in advance of its October 31, 2013 statutory deadline, California’s Department of Toxic Substances Control (DTSC) on September 26, 2013 released its preliminary lists of Candidate Chemicals under the state’s newly enacted Green Chemistry Initiative.  The Green Chemistry regulations, which officially took effect today, require certain “Priority Products” to go through a

Retailers need to begin thinking right now about how they will handle their compliance obligations under the new Safer Chemicals Regulations in California, which go into effect on October 1, 2013.  Under the regulations, identified Chemicals of Concern will be paired with Priority Products and then Responsible Parties will be required to submit an alternatives

On Wednesday, September 4, 2013 from 2:00-3:30 pm EST, a Crowell & Moring team of regulatory and public policy attorneys, along with a subject-matter expert from Exponent, will host a webinar examining the current status of TSCA modernization efforts and the potential impacts on manufacturers and importers.  The discussion will include an analysis of the

The Juvenile Products Manufacturers Association (JPMA) announced today a legislative proposal to ensure that car seats manufactured for sale in the United States no longer need to contain allegedly hazardous flame retardant (FR) chemicals. The bill, which will likely be introduced later this week, allows manufacturers the flexibility they need to build car seats that

Retailers face serious challenges in complying with their obligations under Resource Conservation and Recovery Act (“RCRA”) and other federal environmental statutes in light of the wide variety of retail products covered by EPA’s waste disposal regulations. EPA recently expressed its intent to consider future rulemaking under RCRA governing retail products unsold, returned, or removed from