Historically, the bulk of Prop 65 actions have come from plaintiff attorneys sending waves of people into retail stores in California to purchase and then test products for possible exposures to listed chemicals.  This paradigm is shifting increasingly to a new pattern of plaintiff behavior:  scouring websites for possibly non-compliant products that are sold and shipped to California addresses.  Continue Reading >

In a remarkable and perhaps precedent-setting decision, a California appellate court sided with cereal manufacturers in ruling last week that Proposition 65 cancer warnings for acrylamide were preempted by federal policy encouraging the consumption of more whole grains.  In overturning a lower court ruling finding no preemption, the three-judge panel of the state appeals court gave remarkable deference to Food and Drug Administration policy and guidance which, the court stated, “contained persuasive reasoning why Proposition 65 acrylamide warnings on whole grain cereals would mislead consumers and lead to health detriments.” Continue Reading >

The REACH Committee of the EU Commission agreed on July 11 to advance a proposal that would restrict the presence of four phthalates (DEHP, DBP, BBP, DIBP) in products placed on the market.   The proposed restriction would limit the amount of these common plasticizers, individually or in any combination, to a concentration below 0.1% by weight. Continue Reading >

We are seven weeks away from the California Proposition 65 amendments adopted in 2016 going into full effect, including substantial changes to the wording and format for providing warnings, new guidance on providing warnings for website purchases, and tailored warnings for certain exposure scenarios (such as restaurants), as well as important new provisions regarding the division of responsibility for providing warnings among retailers, manufacturers, distributors, and others in the supply chain.  Continue Reading >

Thousands of companies that sell chemical products online should pay close attention to a new EU enforcement initiative aimed at the apparent widespread failure to disclose health and safety hazard information to consumers making website purchases.  EU member state enforcement authorities will focus on internet sales of chemical products, according to an announcement regarding the launch of the 8th REACH enforcement project.  Continue Reading >

Reversing course from an Obama-era EPA agreement to initiate a rulemaking to impose spill prevention, countermeasure and control (SPCC) requirements for hazardous substances, EPA announced on June 19th that it believes that existing regulations are adequate to meet its obligations under the Clean Water Act (CWA) and no new regulatory program is needed:

Based on the reported frequency and impacts of identified CWA [hazardous substance] HS discharges, and the Agency’s evaluation of the existing framework of EPA regulatory requirements relevant to preventing CWA HS discharges, EPA has determined that the existing framework of regulatory requirements serves to prevent CWA HS discharges. Continue Reading >

EPA released on June 1 the “problem formulation” documents for the first 10 chemicals for which risk evaluations are being conducted under the amended Toxic Substances Control Act (TSCA).  (See:  https://www.epa.gov/newsreleases/epa-takes-three-important-steps-ensure-chemical-safety-under-lautenberg-act-proposes.)  The documents describe the chemical use and exposure scenarios that the agency expects to examine, as well as the hazards, exposures, conditions of use, and exposed populations (e.g., workers, consumers, bystanders) that will be considered as EPA conducts the risk evaluations.  Continue Reading >

Our aim is to provide timely and insightful analysis on the latest news and trends in the broadly defined area of chemical regulation, with a particular emphasis on regulations that effect consumer and industrial products and materials. While this blog is provided by the Environmental, Health, and Safety practice of Kelley Drye & Warren LLP in Washington, D.C., our focus will not simply be on federal U.S. Continue Reading >

Now that EPA prudently has extended the comment period on its proposal for “Strengthening Transparency in Regulatory Science”, with comments due August 16th and a public hearing scheduled for July 1th, perhaps the additional time will allow for more reasoned evaluation of the eminently worthwhile goal of increasing the transparency of the science upon which the agency relies. Continue Reading >