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