Topic: Recent legislation and regulations

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California flammability standard for upholstered furniture goes national

By Will Troutman (US) and Eva Yang (US) on January 15, 2021 Posted in Recent legislation and regulations

On December 21, 2020, Congress passed The Safer Occupancy Furniture Flammability Act (SOFFA), which was presented alongside other legislation in a $1.4 trillion COVID relief omnibus bill. SOFFA requires the adoption of California’s TB 117-2013 as a federal flammability standard for residential upholstered furniture. TB 117-2013 outlines performance standards and methods for testing the smolder resistance of cover fabrics along with the barrier, filling, and decking materials used in upholstered residential furniture.

Background

Historically, there has been disagreement in the industry about whether upholstered furniture should be required to withstand an open flame or just be smolder resistant. Prior to … Continue Reading

California moves to restrict the use of short-form Prop 65 warnings

By Jeff Margulies (US), Will Troutman (US) and Lauren Shoor (US) on January 11, 2021 Posted in California Proposition 65, Recent legislation and regulations

On January 8, 2021, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice of proposed rulemaking significantly limiting the use of the short-form warning as a safe harbor. The proposed regulation makes the following changes:

Limiting the use of the short-form warning to products with 5 square inches or less of label space for consumer information
Requiring at least one chemical to be identified in the warning
Eliminating short-form warnings in internet and catalogs
Clarifying the use of short-form warnings for food, including the use of an offset boxed warning

Background

When OEHHA, the California agency that … Continue Reading

Class actions against CBD companies proliferate under federal and state law

By Mark Faccenda (US), Jeff Margulies (US), Will Troutman (US) and *Katie Fragoso (US) on February 12, 2020 Posted in Food & Drug Administration, Recent consumer products case law, Recent legislation and regulations

On the heels of FDA sending out a tranche of warning letters to sellers of cannabidiol (CBD) products, enterprising plaintiffs lawyers have filed a spate of consumer class actions over these types of products. The complaints put forth a number of different theories tied to the current illegality of these products due to FDA regulation. These include allegations that companies:

misled consumers by marketing their products as dietary supplements,
inaccurately listed CBD dosages or product content; and
made unsubstantiated claims about CBD’s ability to treat, prevent, or cure human disease.

Is it worth the risk?

Hemp-derived CBD was legalized in … Continue Reading

California selects nail products containing MMA for Priority Product list

By Will Troutman (US) and Andy Guo (US) on February 7, 2020 Posted in Green chemistry, Recent legislation and regulations

California’s Department of Toxic Substances Control (DTSC) has proposed listing nail products containing methyl methacrylate (MMA) as its latest Priority Product under its Safer Consumer Products regulation.

DTSC has gone after nail products before–nail products with toluene are already a proposed Priority Product awaiting adoption by the California Legislature.

If the newest proposal is 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.

The California Safer Products Regulation

As a refresher, the Safer Consumer Products regulation restricts the use of certain chemicals … Continue Reading

New York follows Illinois with new lead-content warning requirement for children’s jewelry

By Will Troutman (US), Jeff Margulies (US) and *Katie Fragoso (US) on January 13, 2020 Posted in General, Recent legislation and regulations

In the final week of 2019, New York governor Andrew Cuomo signed into law Assembly Bill A6041 (S4046) to regulate children’s jewelry that contains specified levels of lead. The new law, which will take effect January 1, 2021 (without a “manufactured by” or sell-through date), prohibits the offer for sale or sale in the state of children’s jewelry with lead content greater than 0.004% (40 parts per million [ppm]) but less than 0.01% (100 ppm)* unless it contains a label with the warning language listed below

The bill’s text argues that “stringent controls on the amount of lead … Continue Reading

Furniture tip-over remains in flux

By Will Troutman (US) and Eva Yang (US) on December 2, 2019 Posted in Consumer Product Safety Commission, General, Recent legislation and regulations

A brief internet search shows that unambiguously, industry, regulators, and NGOs all agree that furniture tip-over is a priority in the consumer markets sector. However, there is little agreement on the best approach. Over the last year alone, we have seen the U.S. Consumer Product Commission announce that the Commission deems “clothing storage units” that do not meet ASTM F2057-17 as posing a “substantial product hazard” (presumably requiring a Section 15(b) report and perhaps recall). ASTM F2057-17 requires tip-over testing and permanent warning labels for any clothing storage unit over 30 inches in height. CPSC announced this arguably backdoor rulemaking … Continue Reading

California selects nail products containing toluene for Priority Product list

By Will Troutman (US) and Andy Guo (US) on February 23, 2019 Posted in Green chemistry, Recent legislation and regulations

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

California adopts GDPR-like data privacy law

By Will Troutman (US) and Spencer Persson (US) on June 29, 2018 Posted in General, Recent legislation and regulations

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.

California proposes to exempt coffee from Prop 65 warning requirement

By Jeff Margulies (US) on June 18, 2018 Posted in California Proposition 65, Recent legislation and regulations

On April 12, 2018, we wrote about the decision in Council for Research on Education in Toxics v. Starbucks, in which a California Superior Court judge rejected the evidence presented by coffee roasters and retailers to demonstrate that exposures to acrylamide in coffee were exempt from Proposition 65’s warning requirement. With a motion for permanent injunction to be heard on July 31, despite widespread criticism of the basis of the court’s ruling (see, e.g., articles from NPR, CBS News, Self Magazine, and WebMD), it appeared that Prop 65 warnings for coffee would soon proliferate in … Continue Reading

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

By Will Troutman (US) on February 4, 2018 Posted in Recent legislation and regulations

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

CPSC finalizes phthalate rule that may cause headaches for imports

By Will Troutman (US) and Andy Guo (US) on December 20, 2017 Posted in Consumer Product Safety Commission, Recent legislation and regulations

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

California enacts law requiring cleaning product ingredient disclosures

By Will Troutman (US) and Andy Guo (US) on October 25, 2017 Posted in Recent legislation and regulations

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

By Will Troutman (US) on October 13, 2017 Posted in Green chemistry, Recent legislation and regulations

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

New Jersey passes new drivers license swipe law

By Spencer Persson (US) on August 7, 2017 Posted in General, Recent legislation and regulations

In enacting the Personal Information and Privacy Protection Act (S-1913), New Jersey joins a growing minority of states with so-called “swipe laws.” New Jersey’s law generally aligns with swipe laws in the approximately one-third of other states with such laws, limiting the purposes and type of information a retailer may scan and retain from identification cards. However, New Jersey goes a step further than most in specifying data storage requirements and requiring notification directly to the consumer when ID information is compromised.

Permissible uses

As of October 1, 2017, retailers will only be permitted to scan customers’ drivers’ licenses … Continue Reading

EPA formaldehyde saga continues

By Will Troutman (US) and Andy Guo (US) on July 7, 2017 Posted in Recent legislation and regulations

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

By Will Troutman (US) and Lauren Shoor (US) on May 26, 2017 Posted in Green chemistry, Recent legislation and regulations

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

By Will Troutman (US) and Andy Guo (US) on May 25, 2017 Posted in Recent consumer products case law, Recent legislation and regulations

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

Chicago checkout bag tax set to begin

By Will Troutman (US) and Andy Guo (US) on January 30, 2017 Posted in General, Recent legislation and regulations

For retailers and other companies doing business in the Windy City, the Chicago Checkout Bag Tax Ordinance implements a $0.07 tax on “the retail sale or use” of paper or plastic checkout bags. It goes into effect on February 1, 2017. The new tax accompanies the repeal of the city’s reusable bag ordinance.

The tax operates like a typical product stewardship fee – wholesalers of paper or plastic checkout bags must collect the tax when supplying checkout bags to stores in the city and then pass the additional cost down the supply chain. Wholesalers are responsible for remitting the … Continue Reading

Trump administration ices EPA formaldehyde in composite wood rule

By Will Troutman (US) and Andy Guo (US) on January 27, 2017 Posted in Recent legislation and regulations

Following up our recent post on EPA’s publication of its formaldehyde in composite wood rule, the Trump administration has delayed the rule’s effective date from February 10, 2017 to March 21, 2017. This delay is part of the administration’s “Regulatory Freeze Pending Review.” It is unclear what impact this freeze will have on the rule’s implementation, as the “manufactured by” date that triggers compliance is based on EPA publication (December 12, 2016), not the original effective date (February 10, 2017). But the “freeze” is intended to prevent implementation of EPA regulations without review, and directs agencies … Continue Reading

EPA publishes formaldehyde in composite wood rule – Dec. 2017 compliance dates

By Will Troutman (US) and Andy Guo (US) on January 15, 2017 Posted in General, Recent legislation and regulations

EPA recently published its final rule restricting formaldehyde emissions from composite wood. The publication now triggers the rule’s effective date (Feb. 10, 2017) and the first compliance dates (December 12, 2017). The rule implements the formaldehyde standards found in Title VI of TSCA. EPA has expressly stated that the rule is “consistent, to the extent EPA deemed appropriate and practical considering TSCA Title VI, with the requirements currently in effect in California” under CARB’s ATCM Phase 2, but there are some differences that are bound to cause compliance headaches.

Emission Standards

EPA’s final rule contains the same emissions limits as … Continue Reading

Clamshell compliance: California’s Rigid Plastic Packaging Container law

By Will Troutman (US) on December 1, 2016 Posted in General, Recent legislation and regulations

California remains on the forefront of sustainability and recycling requirements. A key restriction in California is the Rigid Plastic Packaging Container Law, which targets hard plastic product packaging (namely “clamshells”). The law requires that product manufacturers reduce waste from covered packaging through several methods.

The California Department of Resources Recycling and Recovery, referred to as CalRecycle, administers the law and enforces its requirements. Non-compliance can subject a manufacturer to up to $100,000 in fines per year.

What the law covers

The law applies to packaging that is:

Made entirely of plastic (except for incidental portions of the packaging);

Drone requirements continue to evolve

By Will Troutman (US) and Andy Guo (US) on November 30, 2016 Posted in Recent legislation and regulations

Back in 2015, the FAA promulgated various rules and regulations regarding the use of drones, which included a requirement to register all such aircraft. The FAA has subsequently finalized its rule for Small Unmanned Aircraft Systems, which took effect on August 29, 2016. The new rule offers safety regulations and limitations for unmanned drones weighing less than 55 pounds that conduct “non-hobbyist operations.”

This is particularly relevant because the past year has seen the rapid rise of unmanned aircraft, and various companies are experimenting with the use of drones in their commercial ventures.

This post provides a quick overview … Continue Reading

New PCI requirements for retailers

By Susan Ross (US) on July 11, 2016 Posted in General, Recent legislation and regulations

For retailers that accept credit or debit cards and use service providers, a new version of the PCI Data Security Standards (PCI DSS v3.2) will impose new requirements as of November 1, 2016.

The Payment Card Industry (PCI) Security Standards Council issued “clarifications” and “evolving requirements” in the new version. Clarifications are changes to ensure “that concise wording in the standard portrays the desired intent of the requirements.” Evolving requirements aim to “ensure that the standards are up to date with emerging threats and changes in the market.” The Council also issued guidance as part of the new standards.

Altogether, … Continue Reading

UPDATE: President Obama signs TSCA reform bill into law

By Will Troutman (US) and Andy Guo (US) on June 23, 2016 Posted in Green chemistry, Recent legislation and regulations

Updating our prior post, President Obama has signed the TSCA reform bill into law. We will continue to provide updates as expectations for implementation develop.… Continue Reading