• Nanotechnology

Consumer Products

Consumer Product Safety Improvement Act of 2008

With the passage of the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), consumer product regulation is recognized as a critical factor for retailers, importers, consumer product manufacturers, and their upstream suppliers.  Beveridge & Diamond counsels clients on these complex requirements, their implementation by the Consumer Product Safety Commission (“CPSC”), and Congressional consideration of CPSIA amendments. 

Other Statutes Administered by the CPSC

Consumer product regulation was in place long before the CPSIA, and Beveridge & Diamond has represented clients on consumer product issues over the thirty-five years since the firm was founded.  This experience includes work on the variety of consumer products regulated by the CPSC under the Consumer Product Safety Act, the Federal Hazardous Substances Act, the Flammable Fabrics Act, and the Poison Prevention Packaging Act. 

Packaging, Labeling, and Marketing Claims

In addition to CPSC work, we help clients comply with the Fair Packaging and Labeling Act, administered by the Federal Trade Commission (“FTC”) and state counterparts.  Our attorneys also address a variety of other FTC and state consumer protection requirements and guidelines, including those on environmental marketing claims (the “Green Guides”) and more specific trade regulation rules such as those on labeling and advertising of home insulation.  We counsel clients on warning requirements that may apply to consumer products, such as California’s Proposition 65.

EPA and State Regulation of Pesticides in Consumer Products

We routinely represent clients on consumer products regulated by the Environmental Protection Agency (“EPA”) and its state counterparts.  This work includes the full range of regulatory matters involved in the approval, manufacture, marketing, import, and export of pesticides sold for consumer or home use under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and analogous state laws.  We have substantial experience with all types of pesticides intended for residential use, including antimicrobial products, insecticides, herbicides, fungicides, and repellents.  In addition, we represent clients on issues related to the “treated article” exemption, which allows the sale of a wide variety of consumer, household, and other products treated with pesticides without registration of the treated products themselves as “pesticides,” and other exemptions and exceptions from registration requirements.  We also counsel clients on the regulatory implications of using nanotechnology materials such as in pesticides.

Regulation of Chemicals in Consumer Products

We help clients with consumer product issues arising under the Toxic Substances Control Act (“TSCA”), such as premanufacture notifications, significant new use rules, and the TSCA Inventory status of consumer product components.  (Such requirements can, among other things, affect the availability of important raw materials used in consumer products and are taking on added importance in light of current calls for amending TSCA and/or more aggressive EPA regulation under TSCA.)  We also work with TSCA reporting requirements applicable to consumer products, including the expanded Inventory Update Rule, health and safety study reporting, and substantial risk reporting.  This work encompasses both conventional chemicals and nanomaterials.

We also represent clients with requirements analogous to TSCA under international and state chemical regulatory programs, ranging from the European Union’s REACH program to requirements in individual states.

EPA, State, and International Regulation of Hazardous Waste

We help clients dispose of recalled consumer products in compliance with hazardous waste requirements, including the Resource Conservation and Recovery Act (“RCRA”) and analogous state laws, as well as transboundary disposal compliance.  We also advise clients on the complex issues posed by such laws for programs to collect, recycle, and/or refurbish end-of-life products.

FDA Regulation of Consumer Products

Our practice includes FDA regulation of consumer products that fall within its jurisdiction, including personal care products, dietary supplements, food additives, and food packaging.

Product Content Restrictions

In addition to these broad federal and state laws and guidelines, we counsel clients on the ever-growing number of chemical-specific requirements that affect consumer products.  Examples include lead in paint and children’s jewelry, mercury thermometers, heavy metals and perfluorinated chemicals in electronics, bisphenol A in baby bottles and food contact materials, phthalates in children’s toys and child care articles, and nonylphenol ethoxylates in laundry detergent. 

In addition to federal and state restrictions, our practice covers international developments, such as proposals to regulate chemicals in products under the Strategic Approach to International Chemicals Management (“SAICM”) and preparation of a treaty regulating mercury, and foreign requirements that may impact consumer products in the U.S., such as the European Union’s Directive on Restriction of Hazardous Substances (“RoHS”) and Directive on Waste Electrical and Electronic Equipment (“WEEE”), and their counterparts around the world.

Lacey Act

We advise clients (retailers, product manufacturers and distributors) regarding compliance with the Lacey Act.  Recent amendments to the Lacey Act, aimed primarily at preventing illegal logging, prohibit trade in any products made from trees or wild plants that were taken, possessed, transported, or sold in violation of federal, state, tribal, or foreign laws.  We help clients assess the substantive compliance of their products under the Lacey Act, identify legal risk areas, evaluate and communicate with their supply chain, conduct due diligence to verify that materials are legally sourced, and file import declarations where applicable.  We also handle criminal and civil enforcement actions under the Lacey Act.

California Proposition 65

We have worked on Proposition 65 matters related to consumer products and other materials consistently since 1989.  We regularly advise clients on Proposition 65 compliance questions.  We have also litigated major Proposition 65 matters, including People v. Superior Court (American Standard) (1996) 14 Cal.4th 294, one of the few Proposition 65 cases to reach the California Supreme Court, and Mangini v. J.G. Durand (1994) 31 Cal.App.4th 214, a case which settled after a long trial and is still one of a handful of Proposition 65 cases to be tried.  

EPA and State Encouragement of Green Chemistry

We counsel clients on green chemistry initiatives, including those under the federal Pollution Prevention Act and state laws.  (Green chemistry in this context refers to the design of products that reduce or eliminate the use and generation of hazardous substances.)  We also inform and engage clients with regard to emerging state programs such as California’s Green Chemistry Initiative, which has given California’s Department of Toxic Substances Control a legislative mandate to develop regulations for identifying chemicals of concern in consumer products and regulating chemicals of concern in consumer products based on a multimedia lifecycle evaluation.

Non-Governmental Considerations

We counsel clients on product stewardship, voluntary codes related to consumer products, and retailer requirements and restrictions on product content and packaging.

Examples of how our attorneys have helped clients with a wide range of consumer product issues include the following.

• Advised clients on whether their products are subject to the CPSIA lead, lead-in-paint, and phthalate restrictions, as well as the ASTM F963 Toy Safety Specification, and how to come into compliance with those new obligations.

• Counseled on the CPSIA testing and compliance certification requirements, including how to certify compliance with the Flammable Fabrics Act, the Consumer Product Safety Act, and the Federal Hazardous Substances Act.

• Assisted clients in assessing their potential notice and recall obligations under authorities enforced by the CPSC. 

• Advised clients on the extent to which state lead and phthalate laws are preempted by the CPSIA.

• Advised a consumer products retailer on TSCA requirements for reporting health and safety studies on lead in consumer products, and on reporting to EPA on CPSIA-related recalls for products containing excessive levels of lead or phthalates.

• Evaluated numerous electronic products to determine compliance with the European Union’s RoHS Directive.  Identified a number of ways that a product could be modified to ensure compliance. 

• Helped a major consumer products manufacturer choose among various alternative chemicals to be incorporated into a new line of products by assessing the current regulatory requirements and future regulatory outlook for each of the chemicals under consideration.

• Counseled companies on the potential need to register consumer products with antimicrobial or pest repellent properties under FIFRA.  Obtained favorable resolution of several cases alleging that products were not properly registered.  

• Assisted clients in complying with state laws and regulations mandating that companies marketing electronic products and mercury-containing devices register with the states and with implementing plans for ensuring that the products are managed properly at their end-of-life. 

• Counseled clients on the requirements for labels and other warnings for consumer products containing carcinogens or developmental/reproductive toxins under California’s Proposition 65.  Obtained favorable settlements in several cases alleging inadequate warnings for products under Proposition 65.  

• Helped a major manufacturer of consumer products develop product labels and related documents that could be used worldwide to instruct end-users how to properly recycle or dispose of the products at their end-of-life. 

• Reviewed green marketing claims prior to publication for compliance with the FTC’s Guidelines for the Use of Environmental Marketing Claims, as well as state and international guidance on acceptable green claims. 

• Provided training for various clients (including in-house counsel, marketing personnel, and other personnel) on advertising generally, including green claims, TSCA, pesticide regulation, and other requirements affecting their consumer products. 

• Advised on compliance with the European Union RoHS and WEEE Directives and their counterparts in other parts of the world.

• Counseled on mercury and other heavy metal restrictions under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal and other international agreements and proposed agreements. 

• Counseled on proposed and final federal, state, and foreign “extended producer responsibility” or product take-back requirements involving electronics and other products.

• Advised clients on U.S. and foreign product take-back requirements involving expired pharmaceuticals, pesticides whose registrations have been canceled, and other products. 

• Assisted clients in various industries (e.g., foods, toys, and hardware) ensure that recalled products were collected and managed (i.e., recycled or disposed of) in accordance with applicable federal, state, and local requirements governing solid or hazardous wastes and water discharges.

• Worked successfully with the California Attorney General’s office to avert Proposition 65 cases related to consumer products, including a matter in which the prospective plaintiff withdrew the notice and another in which we first persuaded the Attorney General’s office that there was no important health issue at stake and then enlisted the office’s support in convincing a private plaintiff that no statutory violation was occurring.

• Advised clients on Lacey Act requirements applicable to their products, conducted a Lacey Act compliance review for a large retailer client, prepared Lacey Act training materials for clients, and analyzed product and supply chain risk areas under the Lacey Act.

• Represented clients in EPA enforcement action alleging violations of the pesticide “treated article exemption” in connection with the sale of antimicrobial-treated housing fixtures, including negotiating settlement terms and advising on compliant marketing claims under the exemption.