Will Troutman (US)

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Adler elected Acting Chair of CPSC in surprise

In what can only be described as a shocking turn of events, CPSC Commissioner Robert Adler (Dem.) has been elected Vice-Chair of the Commission. This means he will become the Acting Chairman of the Commission when current Acting Chairman Ann Marie Buerkle steps down at the end of September. Since Buerkle announced she was withdrawing her nomination to be Chairman and would leave the CPSC at the end of her term this year, many assumed that Commissioner Peter Feldman (Rep.) would assume the Acting Chair role, as Republicans had recently gained a majority for the first time in more than … Continue Reading

The mysterious world of Prop 65–reloaded!

Nearly five years ago, we started publishing our first serial, The mysterious world of Prop 65. Although we knew we struck gold with the brilliant series title, we could not have contemplated that these would become our most visited, read, and referred to posts.

Since 2014, a lot has changed in the Proposition 65 landscape, ranging from the revised safe harbor warning regulations in 2018 to the cast of characters comprising the Prop 65 plaintiff’s bar.  We thought it high time to provide an updated edition. Over the next few weeks, we will be posting The mysterious world Continue Reading

TARIFFS! Exclusion process for Section 301 tariffs is now available for List 3 products

Unsurprisingly, tariff issues are becoming more and more prevalent for consumer products manufacturers, distributors, and retailers. In a positive turn, List 3 products are now eligible for exclusions from the significant Section 301 (China) tariffs. Check out this summary and analysis of the process from our international trade colleagues.

 … Continue Reading

Webinar: What do you mean I’m shipping hazmat?

I’m delighted to announce that Norton Rose Fulbright will be hosting a webinar on May 30 at noon CDT with an absolute HazMat pro, Jim Shimko of Labelmaster.

Each day, U.S. businesses transport over one million HazMat shipments, and every one of them is subject to federal standards. Chances are, your company is shipping HazMat whether you know it or not. And while your logistics and operations personnel may be well-versed in the requirements, HazMat is heavily enforced, and in-house counsel should know the basics in case a problem arises. HazMat regulations establish standards for HazMat identification, training, labeling, … Continue Reading

CPSC targets furniture tip over hazard with substantial product hazard designation

At last week’s ICPHSO Annual Meeting, the US Consumer Product Safety Commission’s Acting Chairman Ann Marie Buerkle broke news to attendees, announcing that CPSC would deem “clothing storage units” that do not meet ASTM F2057-17 as posing a “substantial product hazard.” In concert with Buerkle’s announcement, CPSC’s Deputy Executive Director issued a letter to “Manufacturers, Importers, and Retailers of Clothing Storage Units” that effectively makes this existing voluntary safety standard mandatory.… Continue Reading

California selects nail products containing toluene for Priority Product list

California’s Department of Toxic Substances Control (DTSC) has proposed listing nail products containing toluene as its latest priority product under its Safer Consumer Products program.

If adopted, responsible parties will need to remove impacted products from sale in California or undertake an alternatives analysis in order to continue selling in California.… Continue Reading

Will new House majority lead to a federal supply chain transparency law?

Privately, companies have long self-regulated supply chains to prevent human trafficking, forced labor, and child exploitation. Meanwhile, governmental efforts have lagged in the public sphere. But the past few years have shown a marked change. California, the United Kingdom, France, and Australia have enacted legislation requiring companies to publicly disclose the steps they are taking to eradicate slavery and human trafficking in their operations and supply chains for each financial year. Canada is currently considering similar legislation.… Continue Reading

Proposition 65 survival guide

At long last, it’s here—OEHHA’s long-awaited amendments to the Proposition 65 “clear and reasonable warning” regulations become mandatory for products manufactured on and after August 30, 2018.

As we are sure you’ve probably heard ad nauseam by now, the revisions make two key changes to the Proposition 65 regulations: (1) for the first time, they allocate responsibility for warnings among suppliers and retailers; and (2) they make several substantive changes to the content and methods of transmission for “safe harbor” warnings.… Continue Reading

California Proposition 65 amended warning regulations

On August 30, 2016, OEHHA’s long-awaited amendments to the Proposition 65 clear and reasonable warning regulations became final.  The amendments bring two major changes: (1) an allocation of responsibility for providing warnings between retailers and suppliers; and (2) revisions to the safe harbor warning requirements, including warning content and methods of transmission.

Allocation of responsibility

Under the existing Proposition 65 regulations, any party in the supply chain could be held liable for failure to provide a warning.  The revised regulations allocate responsibility for warnings primarily to manufacturers, distributors, and importers (together, suppliers), with retailers responsible in specified circumstances.

Suppliers … Continue Reading

California adopts GDPR-like data privacy law

On June 28, 2018, the California legislature enacted the California Consumer Privacy Act of 2018 (the “CCPA”) a sweeping, GDPR-like privacy law that is likely to apply to most retailers that operate in California. It includes disclosure requirements, consumer access rights, opt-out rights, and deletion rights. The new law is set to take effect on January 1, 2020.  Check out this summary and analysis of the law from our cybersecurity and date privacy colleagues.

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The year in review: cosmetics remain target of California VOC enforcement

A year-end review of the California Air Resource Board’s published enforcement settlements highlights that cosmetics remain a priority for ARB under the General Consumer Products Regulation, which limits the amount of volatile organic compounds (VOC) in consumer products.

The General Consumer Products Regulation

The ARB General Consumer Products Regulation sets VOC limits (percent by weight) for a variety of consumer products, including hair styling products, personal fragrance products, and nail care products. Covered consumer products may not be sold, supplied, offered for sale, or manufactured for sale in California unless they meet the applicable limit.

For strict liability offenses, … Continue Reading

New security requirements issued for credit card payments on mobile devices

Check out this new post from my colleague, Sue Ross, covering new standards for mobile device credit card payments, including at retail stores. The Payment Card Industry (PCI) Security Standards Council recently announced the new standards, which apply to PIN entry transactions on smartphones and tablets used at point-of-sale. The post is published in Norton Rose Fulbright’s Data Protection Report.… Continue Reading

CPSC finalizes phthalate rule that may cause headaches for imports

The U.S. Consumer Product Safety Commission has finally published its Final Rule on phthalates. CPSC first proposed the rule nearly three years ago, and its publication brings to eight the number of phthalates included in CPSC’s consumer product safety standard for children’s toys and child care articles.

The rule is effective April 25, 2018 – but in a move that is likely to have serious implications for importers of record, it applies to children’s toys and child care articles domestically manufactured or imported on or after that date, regardless of date of manufacture. These products will need to … Continue Reading

Proposition 65 Listed Chemical update

Here is the latest roundup of Proposition 65 chemical issues looming on the horizon for consumer products. Reminder: warnings are required 12 months after the listing effective date, assuming that there is an exposure, and the exposure exceeds the level that requires a warning:

Listed effective Oct. 27, 2017:

Continue Reading

California enacts law requiring cleaning product ingredient disclosures

California has enacted Senate Bill 258, the “Cleaning Products Right to Know Act of 2017.” SB 258 requires cleaning product manufacturers to disclose the ingredients of their products to consumers. The bill is a victory for disclosure advocates after many failed attempts at a California “right-to-know.” The first disclosure requirements take effect for products manufactured on and after January 1, 2020.

Disclosure Requirements

SB 258 requires ingredient disclosure in two ways – online disclosures and product labeling. Manufacturers must comply with both requirements, although the compliance dates are phased in.

Online disclosures

Manufacturers of cleaning products sold in California must … Continue Reading

Oregon children’s product reporting instructions and portal go live

With less than three months to go before the first biennial reporting deadline, the Oregon Health Authority has opened its reporting portal and issued instructions for reporting under the Oregon Toxic Free Kids Act. The Act requires manufacturers (or importers into the state) to report the existence of “High Priority Chemicals of Concern for Children’s Health” (HPCCCH) contained in children’s products offered for sale in Oregon, if the HPCCCH are intentionally added above de minimis levels or are present as contaminants above 100 parts per million. The first reporting deadline is January 1, 2018, for all covered products sold … Continue Reading

CPSC removes seven plastic types from CPSIA third party testing for phthalates

In an effort to reduce the burdens of compliance with the U.S. Consumer Product Safety Improvement Act, the U.S. Consumer Product Safety Commission has voted to remove seven types of plastics (containing specified additives) from the CPSIA’s mandatory third party testing requirement for phthalates in children’s toys and child care articles.  The Commission determined that the following types of plastics with specified additives do not contain regulated phthalates above the 1,000 parts per million limit in the CPSIA:

  • polypropylene (PP)
  • polyethylene (PE)
  • high-impact polystyrene (HIPS)
  • acrylonitrile butadiene styrene (ABS)
  • general-purpose polystyrene (GPPS)
  • medium-impact polystyrene (MIPS)
  • super-high-impact polystyrene (SHIPS)

The applicable … Continue Reading

EPA formaldehyde saga continues

Back in January, the EPA published its final rule restricting formaldehyde emissions from composite wood. While the original rule set compliance dates starting December 12, 2017 (with additional dates in 2018 and 2023), the rule has undergone a tumultuous several months. Where it stands now is anybody’s guess, but the prudent course is to plan for December 2017 implementation.

First, the Trump administration regulatory freeze delayed the effective date by 30 days, but this delay did not impact the compliance dates, which were triggered by publication of the rule. Then EPA issued a new “direct final rule” extending the compliance … Continue Reading

Washington restricts flame retardants in children’s products and upholstered furniture

On July 1, 2017, Washington’s “Toxic-Free Kids and Families Act” goes into effect, restricting the use of the following five flame retardants in children’s products and residential upholstered furniture:

  • Additive TBBPA
  • Deca-BDE
  • HBCD (HBCDD)
  • TDCPP
  • TCEP

Under the Act, manufacturers, wholesalers, and retailers are prohibited from manufacturing, knowingly selling, offering for sale, or distributing for sale or use in Washington children’s products and residential upholstered furniture containing these five flame retardants in amounts greater than 1,000 ppm in any product component.

While the impact may be muted because several states, including California, New York, Vermont and Maryland, have … Continue Reading

Drone registry rule grounded by court

Updating our previous post about the Federal Aviation Administration’s rules and regulations regarding the use of drones, an appeals court has struck down one of the more hotly disputed aspects of the program – the FAA’s registration requirement for recreational drone owners.

As part of the FAA’s drone program, FAA regulations require recreational drone users to register their drones. Registration requires users to provide their names, email and physical addresses, pay a $5 registration fee, and display a unique ID number on their drones. Nearly 300,000 drone owners registered within a month of the program’s unveiling.

The registration rule was … Continue Reading

Shedding some light on BPA settlements

In our post last week, we outlined the terms of the first two published Proposition 65 BPA settlements, for polycarbonate drinkware. We explained that we don’t know if these settlement terms would become a standard for future settlements and compliance because of the nature of the settlements – out-of-court, with the same plaintiff and Proposition 65 plaintiffs firm. After some consideration, it’s our belief that these settlements will not be particularly useful in guiding companies who seek to avoid Proposition 65 warnings for polycarbonate, whether in drinkware or other products.

The settlements require either reformulation to 1,000 parts per million … Continue Reading

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