Hunton Retail Law Resource

In June 2023, EPA announced the dates for the 2024 submission period for information required under the Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR) rule. The information is collected every four years from manufacturers and importers of certain chemicals in commerce, generally when production volumes for those chemicals are 25,000 pounds or greater in a given reporting year. The 2024 submission period runs from June 1, 2024 to September 30, 2024.

On April 25, 2022, the United States Supreme Court agreed to hear the plaintiff’s appeal in Mallory v. Norfolk Southern Railway Company, 266 A.3d 542 (Pa. 2021), in which the Pennsylvania Supreme Court struck down the increasingly contentious “consent-by-registration” theory of personal jurisdiction. The theory deems corporate defendants to have consented to general personal jurisdiction (also known as “all-purpose” jurisdiction) in a forum based solely on its registration to conduct business there. As we reported in our February 2022 article—Mitigating ...

On April 14, 2022, the United States Environmental Protection Agency released an updated draft risk assessment for formaldehyde, in which it links long-term, low-dose inhalation of the common chemical to leukemia and various cancers involving the head and neck.  EPA has also identified potential links to non-cancer health outcomes, including sensory irritation, respiratory problems, reproductive and developmental toxicity, and nervous system effects.  The risk assessment associates these potentially adverse health effects with lifetime doses even lower than those identified by EPA in its 2010 draft, which EPA had agreed to revisit after the scientific community and industry stakeholders criticized its methodology.

A group of Democratic representatives led by Rep. Jan Schakowsky (D-IL) have introduced a “Safer Beauty” bill package that would ban certain chemicals in cosmetics and require more ingredient transparency in the supply chain.  The Safer Beauty bill package is comprised of four separate bills targeting certain “chemicals of concern” commonly used in cosmetics—including PFAS, phthalates, and formaldehyde.

The Consumer Product Safety Commission (CPSC) has proposed a Direct Final Rule implementing the new federal upholstered furniture flammability standard.  The Direct Final Rule, published by the CPSC on April 9, 2021, would codify California’s TB 117-2013 flammability standard as mandated by Congress, but with the following significant clarifications:

In response to industry and consumer demand created by the COVID-19 pandemic, ASTM International (ASTM) has released a new voluntary standard for the design, labeling, testing, and performance of face coverings.  The new standard, ASTM F3502-21, is the first voluntary standard directed at face coverings and “is intended to establish a national baseline” to allow consumers to make more informed decisions about the face covering products they use.

A flurry of asbestos-related activity in the last weeks of 2020 will require the United States Environmental Protection Agency (EPA) to devote significant regulatory attention to asbestos in 2021.  The incoming Biden Administration will need to address these Toxic Substances Control Act (TSCA) developments, and the scope of that response will determine whether regulatory implications extend beyond asbestos to other chemical substances.

Congress has passed a law mandating nationwide compliance with California’s flammability standard for upholstered furniture.  The “COVID-19 Regulatory Relief and Work from Home Safety Act,” included in the massive appropriations bill passed by Congress and signed into law by the President on December 27, 2020, incorporates the provisions previously proposed in the Safer Occupancy Furniture Flammability Act (SOFFA), a bill widely supported by the furniture industry.

The Consumer Product Safety Commission (CPSC) has released COVID-19 guidance confirming that certain personal protective equipment (PPE) must comply with CPSC regulations, including testing, certification, labeling, and recordkeeping requirements.  The guidance, summarized below, also provides a concise overview of other federal regulations that may apply to these products.

On September 4, 2020, the United States Environmental Protection Agency (EPA) released the final scoping documents for the next 20 chemicals it has designated as “high priority” for risk evaluation under the Toxic Substances Control Act (TSCA). If EPA’s risk evaluation process identifies an “unreasonable risk” associated with any use of a chemical, TSCA requires the agency to regulate the risk. That means manufacturers, distributors, and retailers alike may soon be grappling with new regulations and increased litigation risk as EPA moves forward with its analyses and public scrutiny of these chemicals intensifies.

A consumer advisory issued on June 1, 2020 by the United States Environmental Protection Agency (EPA) clarifies which hard-surface disinfectant products may legally make claims regarding expected efficacy against the COVID-19 virus. The advisory, titled “What You Need to Know Regarding Products Making Claims to Kill the Coronavirus Causing COVID-19,” also warns retailers of potential enforcement actions if they sell non-compliant products.

On April 3, 2020, the United States Environmental Protection Agency (EPA) and leading retailers participated in a conference call to discuss ways to protect American consumers from fraudulent COVID-19 disinfectant product claims. As the pandemic continues to wage on, some manufacturers have started to advertise their products as effective against the virus despite a lack of scientific evidence supporting the claim. Such advertising may violate federal law and potentially endangers consumer health and the environment, and could expose retailers to liability.

On March 30, 2020, the United States Environment Protection Agency (EPA) issued its long-awaited draft risk evaluation for asbestos. In it, EPA preliminarily concludes that certain uses of asbestos pose unreasonable risks to human health. If those conclusions are made final, EPA will issue regulations addressing those risks in what would arguably be the most significant action the agency has taken to regulate asbestos since its 1989 ban was successfully challenged by industry groups.

The United States Environmental Protection Agency (EPA) has announced that it will provide retail companies with significant relief from its Toxic Substance Control Act (TSCA) Fees Rule. In a formal “No Action Assurance” (NAA) letter released to the public on March 25, 2020, EPA confirmed that companies importing products containing any amount of certain common “high-priority” chemicals will not be required to share in the fees for EPA’s upcoming risk evaluations for those chemicals. EPA also announced that it will provide exemptions for companies that manufacture a high-priority chemical only as a byproduct or impurity.

A new bill introduced in Congress earlier this month could increase litigation risk for the retail industry by leaving companies unable to prevent the Consumer Product Safety Commission (CPSC) from disclosing inaccurate or premature information about potential product hazards. The Safety Hazard and Recall Efficiency (SHARE) Information Act, introduced on January 9, 2020, by U.S. Representative Bobby L. Rush (D-IL), would also increase the maximum civil penalty for violations of the Consumer Product Safety Act (CPSA) from $15 million to $50 million. Largely seen as a response to public criticism over the perceived delays in the CPSC’s disclosure of hazards associated with infant inclined sleepers over the last year, the SHARE Information Act would allow the CPSC to tell the public that a product may pose a safety issue before the hazard has been confirmed.

The United States Environmental Protection Agency (EPA) has imposed the first penalty for violations of its new rule limiting formaldehyde emissions from composite wood products just over one year after the rule became effective. The $544,064 penalty assessed against construction product supplier Global Sourcing Solutions, a Division of Turner Logistics, LLC (Global Sourcing Solutions), comes as part of a consent agreement between EPA and the company, which will also be required to implement a corrective action plan.

As reported in an August 27, 2019 client alert by the Product Liability and Mass Tort Litigation practice, on August 23, 2019, the United States Environmental Protection Agency (EPA) designated 20 chemicals commonly found in consumer products as “high priorities” for risk evaluation and possible regulation. EPA’s identification of these chemicals comes under the authority conferred by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), which amended the Toxic Substances Control Act (TSCA) in 2016 to give EPA new powers to review and regulate ...

On April 17, 2019, the United States Environmental Protection Agency (EPA) issued a final “significant new use rule” (SNUR) prohibiting over one dozen uses of asbestos from returning to the marketplace without EPA review and approval.

On August 29, 2018, despite industry criticism, the California state legislature passed AB 2998 (the “Bill”), which will require that levels of chemical flame retardants in covered products be below 1,000 parts per million. The Bill, which the governor is expected to sign into law, states that starting January 1, 2020, distributing children’s products, mattresses and upholstered furniture containing most chemical flame retardants will be illegal in the state of California. Samples of covered products sold to consumers will be provided to California’s Department of Toxic Substances Control for testing, and if a product is found to be noncompliant, a fine may be assessed against the manufacturer, distributor and/or retailer. 

Since the United States Supreme Court’s decisions in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) and Daimler AG v. Bauman, 134 S. Ct. 746 (2014)—and particularly in light of the Court’s more recent decisions in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) and BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017)—courts across the country have applied a more exacting standard for assessing whether defendants can be subject to general personal jurisdiction in a particular forum. Under this standard, a plaintiff must demonstrate that the defendant’s contacts with the forum are so continuous and systematic as to render it “essentially at home” there. In most instances, a company is “essentially at home” only in the state where it is incorporated and the state where it operates its principal place of business. This has been a largely positive result for companies in the retail product industry that may have strategic incentive to avoid becoming subject to “all purpose” general personal jurisdiction in each state in which their products are sold.

In a move affecting manufacturers, distributors and retailers in the furniture and other wood-based industries, the Environmental Protection Agency (“EPA”) recently issued a series of amendments to its Final Rule implementing the Formaldehyde Standards for Composite Wood Products Act (the “Formaldehyde Final Rule”), which added Title VI to the Toxic Substances Control Act (“TSCA”). The Formaldehyde Final Rule, 40 CFR Part 770, sets formaldehyde emissions standards for composite wood products and includes requirements for the testing, third-party certification, import certification and labeling of covered products by manufacturers of those products. The Final Rule also imposes requirements on downstream fabricators, distributors and retailers to keep records for at least three years demonstrating that covered products they use, distribute and/or sell are TSCA Title VI-compliant.

On June 19, 2017, the United States Supreme Court announced important constitutional limitations on state courts’ ability to exercise specific jurisdiction over nonresidents’ claims against out-of-state defendants. The Court’s nearly unanimous decision in Bristol-Myers v. Superior Court, 582 U.S. (2017) has potentially far-reaching implications for companies facing claims brought by nonresident and resident plaintiffs in states in which those companies are neither incorporated nor maintain their principal place of business. In holding that mere joinder of nonresident plaintiffs’ claims with those of resident plaintiffs does not permit a state court to exercise specific jurisdiction over an out-of-state defendant, the Court’s decision is the latest in a trend of important personal jurisdiction decisions rendered by the high court in recent years which provide companies with significant constitutional protections in terms of where plaintiffs may force companies to litigate.

In August 2016, the Supreme Court of California issued its decision in Bristol-Myers Squibb v. Superior Court, which – as detailed more fully in our earlier post – features an expansive interpretation of specific personal jurisdiction that is difficult to reconcile with the U.S. Supreme Court’s general personal jurisdiction decisions in Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011) and Daimler AG v. Bauman, 134 S. Ct. 746 (2014). Those decisions significantly limited the exercise of general personal jurisdiction over defendant corporations to their state of incorporation and principal place of business unless “exceptional circumstances” exist. 

Since the U.S. Supreme Court’s 2014 decision in Daimler AG v. Bauman, 134 S.Ct. 746 (2014), numerous courts across the country have applied its holding to narrow the permissible bounds of the exercise of general jurisdiction over companies in jurisdictions without a connection to the specific claims in the case. On August 29, 2016, in Bristol-Myers Squibb v. Superior Court, No. S221038 (Calif. 2016), the California Supreme Court left many wondering what Daimler may mean for the exercise of specific jurisdiction in cases involving nationwide courses of business conduct affecting both resident and nonresident plaintiffs. 

Over the past two years, Hunton & Williams has been carefully monitoring the application of Daimler AG v. Bauman in trial and appellate courts throughout the country. The U.S. Supreme Court’s landmark Daimler decision articulated a standard that significantly limits the types of contacts sufficient to subject a defendant to general jurisdiction in a particular forum. Under that standard, a plaintiff must demonstrate that the defendant’s contacts with the forum are so continuous and systematic as to render it “essentially at home” there. In most instances, a company is “essentially at home” only in the state where it is incorporated and the state where it operates its principal place of business. Since the opinion was issued, the risk of a company becoming subject to general jurisdiction outside its home states has substantially decreased—a largely positive outcome for companies in the retail products industry that have traditionally been subject to “all purpose” general jurisdiction in each state where they conduct business.