Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Partner

Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class action lawsuits. Claudia also regularly counsels clients in the food, cosmetics, retail, and technology industries. She represents companies in false advertising disputes before the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc.<h5>More about Claudia</h5>Claudia is active in MoFo’s pro bono efforts, and recently traveled to El Paso, Texas, to work with families separated and detained at the border. She is also supervising a pro bono collaboration with Equal Rights Advocates, a nonprofit fighting for gender justice in work places and schools across the country. The initiative will help students who have been victims of sexual assault, attempted assault, or harassment find support and seek justice. Claudia is also a board member of Bay Area Legal Aid and a former board member of Equal Rights Advocates. Claudia is an editor and frequent contributor to MoFo’s <a href="https://classdismissed.mofo.com/">Class Dismissed</a> blog, which provides reports about the latest defense news, developments, and trends in class action lawsuits and product liability issues that affect consumer-facing companies. Her perspectives are also respected in the larger legal community: Claudia has published articles about class action and false advertising issues, and is a co-author of Chapter 7 — “Unfair Competition in California Business Litigation 2016” — of The Recorder. She also regularly speaks at conferences on class action and advertising trends. Claudia is currently serving as a Lawyer Representative for the Northern District of California. She received her J.D. degree in 2004 from Berkeley Law (Boalt Hall School of Law), where she was an associate editor of the Berkeley Technology Law Journal.

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Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

Adam J. Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.Mr. Hunt has extensive experience representing consumer products companies, financial institutions, and technology firms in class action cases and complex commercial disputes before state and federal trial courts, as well as in arbitrations. Clients seek Mr. Hunt’s counsel for his creative, strategic thinking in high-stakes, high-profile matters. He has represented clients facing claims under false advertising, antitrust, and privacy laws throughout the country, securing wins at the pleading stage, summary judgment, and trial, in addition to negotiating favorable settlements, often early in the case. Representative experience includes successfully securing rulings dismissing two putative false advertising class action cases against one of the best-known consumer electronics companies in the world; obtaining a complete win on summary judgment for a major shipping and logistics company in a multimillion-dollar commercial dispute; appearing as counsel at trial for a leading financial institution in a $100 million commercial dispute, winning a bench trial verdict; and prevailing on motions to dismiss false advertising class actions against a leading Greek yogurt company.Mr. Hunt is also an editor of the firm’s <a href="https://classdismissed.mofo.com/" target="_self">Class Dismissed blog</a>, which provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class action lawsuits that affect consumer-facing companies.Mr. Hunt maintains an active pro bono practice and is the recipient of the New York State Bar Association’s 2017 President’s Pro Bono Service Award for the First Judicial Department, the 2018 Public Service Award from New York University School of Law, and Morrison Foerster’s Kathi Pugh Award for Pro Bono Services.Mr. Hunt received his B.A. with honors from Swarthmore College and his J.D. cum laude from New York University.

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Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

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Alexandra Preece Barlow

Adam J. Hunt

The Future of Section 230: Protection Against Product Liability Claims?

New Wave of PFAS Legislation Aimed at Consumer Products

CPSC Releases Annual Report on Deaths and Injuries Involving Nursery Products

CPSC Proposes New Safety Rules for Infant Rockers

CPSC Commissioners Abstain from Retracting Infant Sleep Product Statements

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California’s innovative Safer Consumer Products regulations, also known as the Green Chemistry Initiative, are ready for another step forward with the proposed inclusion of Spray Polyurethane Foam (SPF) Systems containing Unreacted Methylene Diphenyl Diisocyanates (MDI) as a Priority Product. These SPF systems are used for insulation, roofing, or sealants and raise safety concerns because of their widespread use by both professional contractors and “do-it-yourself” users for home repairs. This is the second Priority Product proposed for listing, following the inclusion of children’s foam-padded sleeping products with fire retardants.

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California Adds New Priority Consumer Product for Green Chemistry Regulation

California Proposes Next Group of Priority Products Under Its Green Chemistry Initiative

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California’s innovative Safer Consumer Products regulations, also known as the Green Chemistry Initiative, are ready for another step forward with the proposed 

California Adds New Priority Consumer Product for Green Chemistry Regulation

A trap for unwary manufacturers and retailers is the California Air Resources Board (CARB) regulations for consumer and other products sold in the state. These rules limit the concentrations of volatile organic compounds (VOCs) and other greenhouse gas–producing chemicals. CARB enforces these regulations with civil penalties and demands for stipulated injunctions. The regulations often apply a step-down approach to require ever-smaller amounts of these chemicals over an extended time period.

California’s New Spray Adhesive and Aerosol Coatings Requirements – Will You Be Ready on January 1?

A trap for unwary manufacturers and retailers is the California Air Resources Board (CARB) regulations for consumer and other products sold in the state. These 

California’s New Spray Adhesive and Aerosol Coatings Requirements – Will You Be Ready on January 1?

On November 18, 2016, the Ninth Circuit issued five rulings rejecting three Hawaii counties’ attempts to regulate pesticides and genetically modified crops, finding that the regulations were preempted by state and federal laws.Alika Atay et al. v. County of Maui et. al.In Atay, citizens of Maui County had voted into law an ordinance that banned the planting and testing of genetically engineered (“GE”) plants.  Maui citizens were concerned about the effects of GE crops and pesticides, particularly in Maui, which “had become an attractive location for field tests” of genetically engineered crops and pesticides.   After the ordinance passed, a group of proponents of the ordinance filed suit, seeking declaratory relief to resolve the ordinance’s legality.  At the same time, opponents of the ordinance filed suit against Maui County to invalidate the ordinance.  After removal to federal court, the district court later granted the opponents’ motion for summary judgment.The Ninth Circuit affirmed the district court’s order on summary judgment.  While the citizen groups had standing to bring the claim, the ordinance was expressly preempted by federal and state law.StandingRelying on Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), opponents of the ordinance argued that proponents lacked standing to defend the constitutionality of the ordinance because the relevant public officials had chosen not to.  The Ninth Circuit disagreed, finding that proponents could establish standing if they could do so independently of their status as ballot initiative proponents.  Unlike in Hollingsworth, appellants established an interest of their own: GE farming operations would threaten economic harm to their organic, non-GE farms.  Opponents had therefore established Article III standing.Federal PreemptionThe Ninth Circuit held that the ordinance was expressly preempted by the Plant Protection Act (“PPA”), to the extent the ordinance bans genetically engineered plants that the U.S. Animal and Plant Health Inspection Service (“APHIS”) regulates as plant pests.  As the court explained, the PPA includes an express preemption provision forbidding a state or local agency from regulating the movement in interstate commerce of a plant, if the regulation is intended to control or eradicate that plant, and if the APHIS has regulated the specific plant.  All conditions were met here.State PreemptionThe Ninth Circuit also held that, while the ban was not impliedly preempted by the PPA in its application to crops that APHIS had deregulated, it was impliedly preempted to these crops by Hawaii’s state statutory scheme for the regulation of potentially harmful plants.  This was because the ordinance addressed the same subject as Hawaii law—the regulation of potentially harmful plants and invasive species.  Moreover, the state’s statutory scheme made clear that the legislature intended for the State’s regulation of potentially harmful plants to be exclusive of supplemental local regulations.  As such, the ordinance was preempted by Hawaii state law.Other Hawaii CasesThe Ninth Circuit also blocked similar attempts to regulate pesticides in Kauai, County and Hawaii County in Syngenta Seeds Inc. et al. v. County of Kauai et al., No. 14-16833, and Hawai’i Papaya Industry Assn. et al. v. County of Hawaii, No. 14-17538.In Syngenta, the Ninth Circuit shut down Kauai County’s attempt to regulate pesticides and GE plants, applying the Hawaii Supreme Court’s “comprehensive statutory scheme” test to find that the ordinance was preempted by state law.   In Hawaii Papaya Industry, the court found that the ordinances were expressly preempted by federal law for the same reasons set forth in Atay.  The ordinances were also impliedly preempted by state law for the same reasons set forth in Atay and Syngenta.

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The Ninth Circuit Kills GMO Pesticide Regulations in Hawaii Counties

The Ninth Circuit Kills GMO Pesticide Regulations in Hawaii Counties

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On November 18, 2016, the Ninth Circuit issued five rulings rejecting three Hawaii counties’ attempts to regulate pesticides and genetically modified crops, fin

Last Friday, the state published the first major changes to the Proposition 65 regulations in more than a decade. The sweeping changes rewrite the “safe harbor” warning regulations and, in doing so, create a new set of challenges for businesses offering products or operating facilities in California.

In re Lumber Liquidators Chinese Laminate Litigation

Maxus Energy Corporation

In re Hydroxycut Personal Injury and Class Action Litigation

Los Angeles World Airport (LAWA)

Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al

Fitbit Force Recall 

People of the State of California v. The Coca-Cola Company

Seagate Technology LLC

Clif Bar, Inc.

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Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on climate-related goals and claims, hazardous substances, mass torts, and consumer product safety.

William Tarantino

Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on hazardous substances, mass torts, and consumer product safety.

William F. Tarantino

WARNING: California Adopts New Proposition 65 “How to Warn” Rules

Last Friday, the state published the first major changes to the Proposition 65 regulations in more than a decade. The sweeping changes rewrite the “safe harbor”

WARNING: California Adopts New Proposition 65 “How to Warn” Rules

Four years after California’s genetically engineered (GE) food labeling initiative was defeated, but just days before Vermont’s GE law is to go into effect, the U.S. Senate is poised to impose such labeling nationwide. The proposed legislation is the result of a compromise of interests between Senate Agriculture Chairman Pat Roberts, R-Kansas, and ranking Democrat Debbie Stabenow of Michigan, and will need 60 votes to pass the Senate.

Nationwide GE Labeling Leaps Forward

Four years after California’s genetically engineered (GE) food labeling initiative was defeated, but just days before Vermont’s GE law is to go into effect, the

Nationwide GE Labeling Leaps Forward

President Obama has signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amends the Toxic Substances Control Act (TSCA) for the first time since it was enacted in 1976. The compromise bill passed by Congress is a major accomplishment at the end of President’s Obama’s administration.The amendment will add new teeth to TSCA, a federal statute regulating the manufacture and sale of chemicals. The law has long been considered as ineffectual due in part to a requirement that EPA implement the “least burdensome” regulations. By removing that language and giving new regulatory powers to EPA, the Lautenberg Act will significantly change the regulatory landscape for chemical manufacturers, processors, and importers.

Federal Toxics Law Grows Up: Congress Strengthens the Toxic Substances Control Act

President Obama has signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amends the Toxic Substances Control Act (TSCA) for the first 

Federal Toxics Law Grows Up: Congress Strengthens the Toxic Substances Control Act

This week, the U.S. Federal Trade Commission (FTC) announced that it has sent warning letters to five marketers of environmental certifications and seals, as well as over 30 product companies displaying those certifications, citing concerns that the certifications failed to comply with the agency’s Guides for the Use of Environmental Marketing Claims (“Green Guides”). The Green Guides are part of the FTC’s commitment to ensure that marketing statements referencing environmental attributes are truthful and not misleading.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy mat

Claudia Vetesi

Red Light for Green Claims: FTC Sends Warning Letters to Green Certifiers

This week, the U.S. Federal Trade Commission (FTC) announced that it has sent warning letters to five marketers of environmental certifications and seals, as we

Red Light for Green Claims: FTC Sends Warning Letters to Green Certifiers

California’s Green Chemistry Initiative has taken another step forward with the issuance of guidance on the heart of the law, the analysis of safer substitutes for chemicals in consumer products.  On September 24, 2015, the California Department of Toxic Substances Control (DTSC) released its Draft Stage 1 Alternatives Analysis Guide (Guide) under its Safer Consumer Products (SCP) Program.  This is the first of two stages of the alternative analysis process released in draft for public comment.  The second stage is scheduled to be released during the first quarter of 2016.  The DTSC also added three new chemicals to its candidate list.The Guide is not issued as a regulation and does not have the force of law.  Rather, it is designed to provide more details from the DTSC about the general process for conducting an alternative analysis for a variety of responsible entities and a diverse set of product types.  The Guide also does not provide a single, specific approach for that analysis.  Instead, the responsible entity must decide which approaches, assumptions, tools, methodologies, data, and decision frameworks will best suit its particular situation.In broad overview, the framework for the alternatives analysis is set forth in the statute and previously adopted regulations:FIRST STAGE ALTERNATIVES ANALYSIS:<ul><li>Step 1: Identify product requirements and functions of Chemical of Concern.</li><li>Step 2: Identify alternatives.</li><li>Step 3: Identify factors relevant for comparing alternatives.</li><li>Step 4: Perform initial evaluation and screening of alternative replacement chemicals.</li><li>Step 5: Consider additional information.</li><li>Step 6: Complete preliminary alternatives analysis report.</li></ul>The Guide identifies “Other Compliance Options” in cases where a responsible entity has already completed an alternatives analysis or a similar comparative analysis.  The options include (1) an abridged analysis, (2) an alternate process analysis, or (3) a previously completed analysis.  Upon demonstration to the DTSC that the “information and analysis for a different approach are adequate for evaluating the Priority Product and the alternatives” and the information and analysis are sufficiently equivalent to the alternatives analysis process as set forth in the SCP regulations, the responsible entity may commence work under one of these options.Some of the key subjects discussed in the Guide include:Product Requirements and Alternatives<ul><li>Product function and performance – A responsible entity must describe a product’s functions and its specific applications to evaluate whether potential alternatives achieve the same or similar functions.” The function may include product characteristics and qualities.  The functions of the product and the product’s Chemical of Concern must be considered in the alternatives analysis.</li><li>Legal requirements – The specific requirements, performance standards and labeling requirements that a chemical, product or product packaging is required to meet under California or federal law must be evaluated.</li><li>Identifying Alternatives – <ul><li>Removing a Chemical of Concern from a Priority Product.</li><li>Reformulating or redesigning a Priority Product to eliminate or reduce the concentration of a Chemical of Concern in a Priority Product.</li><li>Redesigning a Priority Product to reduce or restrict potential exposures to a Chemical of Concern in a Priority Product.</li><li>Making any other change to a Priority Product that reduces the potential adverse impacts or potential exposures associated with the Chemical of Concern in a Priority Product.</li></ul></li></ul>Relevant Factors<ul><li>A potential factor becomes relevant if both of these requirements are met: <ul><li>The factor makes a material contribution to adverse public health impacts, adverse environmental impacts, adverse waste and end-of-life impacts, or material and resource consumption. This relates to a factor that is both meaningful and consequential to an observed outcome or impact.</li><li>There is a material difference in the factor’s contribution to the impacts between the Priority Product and one or more of the alternatives under consideration. This relates to a factor’s contribution to an observed impact that is both meaningful and consequential to the comparison of alternatives.</li></ul></li><li>Identifying relevant factors is an iterative process, part of the scoping process during both stages of the alternatives analysis process.</li><li>The responsible entity uses relevant factors throughout the alternatives analysis process to characterize, evaluate and compare impacts of the Priority Product and its alternatives.</li></ul>Impact Assessments<ul><li>Impact assessments can include the approaches, tools and information sources that a responsible entity may use to conduct its analysis.</li></ul>Screening Alternatives<ul><li>Approaches a responsible entity may use to narrow the list of alternatives will be evaluated in the second stage of the alternatives analysis.</li><li>Alternatives that would be an improvement over the Priority Product should be retained.</li></ul>DTSC is accepting comments on the Guide until October 23, 2015, and it will hold two webinars on October 7 and 21, 2015.SCP Regulations – Proposed CANDIDATE CHEMICAL LIST AMENDMENTAlso on October 2, 2015, the DTSC proposed to add three additional chemicals:  (1) 4-(1,1,3,3-tetramethylbutyl)phenol, ethoxylated, (2) 4-nonylphenol, branched and linear, and 3) 4-nonylphenol, branched and linear, ethoxylated to its Candidate Chemical List.  The DTSC will hold a public hearing on November 16, 2015, and it will accept comments until then.

Consumer Products “Either/Or”: California Issues Guidance on Alternatives Analysis for Safer Products

California’s Green Chemistry Initiative has taken another step forward with the issuance of guidance on the heart of the law, the analysis of safer substitutes 

Consumer Products “Either/Or”:  California Issues Guidance on Alternatives Analysis for Safer Products

On April 29, 2015, California’s Governor Jerry Brown issued an executive order to set a new interim target for reducing the state’s emissions of greenhouse gases (GHGs) to 40 percent below 1990 levels by 2030.  In March 2015, we wrote about the current state of play in GHG regulation in California, noting that the California Global Warming Solutions Act’s (AB 32) silence on GHG reduction requirements after 2020 left a vacuum that could be filled by a 2005 Executive Order issued by Governor Schwarzenegger. The 2005 Executive Order called for GHG emissions to be reduced to 80 percent below 1990 levels by 2050.  Governor Brown’s new Executive Order doubles down on that ambitious goal by setting a similarly ambitious interim target of 40 percent reduction by 2030.Depending in part on how currently pending litigation and proposed Senate Bill 32 (SB 32) are resolved (which we also reported on in our March alert), this latest order threatens to be yet another standard for project proponents to grapple with in determining the significance of their GHG emissions when undergoing environmental review.  SB 32 would codify into state law the requirement that the California Air Resource Board (CARB) approve a statewide GHG emissions limit of 80 percent below 1990 levels by 2050.  As for litigation, briefs have not yet been filed in Cleveland National Forest Foundation et al. v. San Diego Association of Governments, in which the California Supreme Court will determine the import of GHG reduction targets established by gubernatorial decree, such as those in Governor Schwarzenegger’s—and now Governor Brown’s—Executive Orders, unless the state legislature beats it to the punch with SB 32.In the meantime, Governor Brown’s new Executive Order contains numerous requirements directed at state agencies to achieve these ambitious goals.  It calls on CARB to update its Climate Change Scoping Plan, which provides the road map for how GHG reductions will be achieved.  This critical document provides industry with detailed information on what exactly the state will do to regulate GHG emissions.  The Governor’s announcement also can be seen as aligned with many of his other proposals, such as further tightening of the caps in CARB’s aggressive cap-and-trade program, the controversial high-speed rail program, and the initiatives to shift electricity generation to renewable energy sources.  While many experts believe that the interim reductions can be achieved with the increased use of existing technologies, the wild card will be California’s future economic growth, which may strain or counteract the projections of emission reductions.  Thus, the ambitious goals called for by 2030 and 2050 will likely demand a multipronged approach that could have serious impacts on California businesses, including the need for development of new technologies that are not currently available.In connection with the California Natural Resources Agency’s climate adaptation strategy document known as “Safeguarding California,” agencies in key sectors, including water, energy, transportation, and forestry, will be required to prepare implementation plans by September 2015 and to report on actions taken by June 2016.  This aspect of the Executive Order cements climate adaptation as a critical element of agency planning.State agencies will also be required to take climate change into account in planning and investment decisions.  Full life-cycle cost accounting will likely become the norm for state-funded projects.  In other words, projects that utilize GHG reduction strategies to a greater extent will presumably receive an additional boost when being compared to alternatives, even if the alternatives have potentially lower up-front costs.  Current and future climate change impacts will also be taken into account for all infrastructure projects going forward under the state’s Five-Year Infrastructure Plan.To assist agencies with their new responsibilities and obligations, the Governor’s Office of Planning and Research (OPR) is establishing a technical advisory group.  It will be important to track who is selected to be part of this advisory group, as its technical expertise may significantly influence the actual agency decisions that will affect California businesses.Governor Brown is not backing down from the ambitious, aggressive target of an 80 percent GHG emissions reduction below 1990 levels by 2050.  His Executive Order assures that the trajectory for such reductions is in place by adopting the interim target of a 40 percent emissions reduction below 1990 levels by 2030.  Further action by the state legislature or the California Supreme Court may ultimately determine the future of California GHG regulation, but, for now, California businesses must focus on the new Executive Order and the additional regulation it is likely to induce across the state.

California Greenhouse Gas Mandates Keep Coming— Governor Orders 40 Percent Reductions Below 1990 Levels by 2030

On April 29, 2015, California’s Governor Jerry Brown issued an executive order to set a new interim target for reducing the state’s emissions of greenhouse gase

California Greenhouse Gas Mandates Keep Coming— Governor Orders 40 Percent Reductions Below 1990 Levels by 2030

California’s Green Chemistry Initiative continues to build momentum.  On April 16, 2015, the California Department of Toxic Substances Control (DTSC) released its final April 2015 Priority Product Work Plan for 2015–2017 (“Work Plan”).  The Work Plan is the first step in identifying the next set of Priority Products for regulation under California’s Safer Consumer Products Act.  It sets forth seven new product categories, examples, and potential candidate chemicals regarding the types of products that may be evaluated over the next three years.  The product categories, examples, and potential candidate chemicals are:<ul><li>Beauty/Personal Care/Hygiene: Skin Products, Personal Hygiene Products, Hair Products, and Cosmetics and Fragrances (Aldehydes, Formaldehyde; Alkylphenol Ethoxylates (APEs); Azo Dyes, Coal Tars, Lead, and Lead Acetate; Phthalates; Triclosan; and Toluene);</li><li>Building Products (Painting Products, Adhesives, Sealants, and Flooring): Adhesives and Glues, Carpeting and Carpet Padding, Engineered Wood and Laminate Flooring, Paints and Primers, Paint and Graffiti Removers, Roof Coatings, Sealants, and Vinyl Flooring (Brominated or Chlorinated Organic Compounds, Organophosphates; Isocyanates; Metals, such as Chromium VI; Perfluorochemicals; Phthalates; and Volatile Organic Compounds (VOCs), such as Formaldehyde, n-hexane, n-methyl-pyrrolidone, Toluene);</li><li>Household/Office Funiture/Furnishings with PFCs, FRs: Bedding, Curtains, Fabric and Textile Furnishings, and Household and Office Seating (Chlorinated and Brominated Organic ompounds, Organophosphates; and Perfluorochemicals);</li><li>Cleaning Products: Fresheners and Deodorizers, Cleaners, Laundry, and Surface Care (APEs; Hydrogen Fluoride; Phthalates; and Triclosan);</li><li>Clothing: Full Body Wear, Lower Body Wear and Bottoms, Sleepwear, Sportswear, Underwear, and Upper Body Wear and Tops (APEs; Aromatic Amines and Azo Dyes; Perfluorochemicals, Formaldehyde; Phthalates; and Triclosan);</li><li>Fishing and Angling Equipment: Fishing Weights (Metals); and</li><li>Office Machinery (Consumable Products): Inks and Toners, and Thermal Paper (Azo Dyes; Bisphenols; Phthalates: and VOCs such as Hexane, Toluene and Xylene).</li></ul>Prior to the release of the final Work Plan, DTSC received comments on its draft September 14, 2014 Priority Product Work Plan (“draft Work Plan”).  (See prior MoFo client alert).  Substantive comments requested:<ul><li>Adding product categories (notably, food packaging and automotive products) or refining or dropping existing ones, specifically building products and fishing and angling equipment;</li><li>Adding chemicals to the Candidate Chemicals List (e.g., chlorinated and organophosphate flame retardants) or narrowing the scope of chemicals under considerations; and</li><li>Prioritization of specific products during the Work Plan cycle.</li></ul>Some of the changes made to the final Work Plan from the draft Work Plan include:<ul><li>Addition of carpet padding and insulation, as well as wall coverings with flame retardants, as examples in the “Building Products” category narrative;</li><li>Addition of wall coverings with flame retardants as an example in the “Household/Office Furniture and Furnishings” category narrative;</li><li>Revision of the “Clothing” product category narrative, clarifying that the category does not include protective wear for occupational safety purposes.</li></ul>DTSC did not add any new chemicals to the Candidate Chemicals List, nor did it add any new product categories to, or remove any categories from, the final Work Plan.  In 2017, DTSC plans to issue its next Priority Product Work Plan covering the time period 2018 – 2020.  DTSC continues to be behind schedule in moving forward with its plans to regulate its first set of Priority Products.  The final Work Plan shows, however, that the agency has not backed away from its plans to press forward with the Green Chemistry Initiative and to continue to broaden its reach to other consumer products.

California’s Green Chemistry Agency Issues New Guidance to Identify Future Consumer Products for Regulation

California’s Green Chemistry Initiative continues to build momentum.  On April 16, 2015, the California Department of Toxic Substances Control (DTSC) released i

California’s Green Chemistry Agency Issues New Guidance to Identify Future Consumer Products for Regulation