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January 31, 2009

CPSC stays enforcement of testing and certification provisions

Under crushing pressure from manufacturers, the CPSC issued a 1-year stay on enforcement of the testing and certification provisions for certain products.  However, the CPSC made it clear that manufacturers and retailers can still be fined for selling products after February 10 that violate the lead and phthalate requirements. 

Attached is a quick summary I did last night, after the stay was released.  Earlier in the week, NAM petitioned the CPSC for a stay.

The saga continues. 

Kenneth Ross

January 31, 2009 | Permalink | Comments (0) | TrackBack

January 29, 2009

Webcast - Litigate the Torts, Not the Mass

The Washington Legal Foundation is hosting a web seminar entitled "Litigate the Torts, Not the Mass" on Friday, January 30th beginning at 10:00 a.m. EST.  My apologies for this late notice.  The details are below as is a link to a recent WLF monograph by Friday's speakers.


Web Seminar Program


Improving the Multi-District Litigation Process

Friday, January 30, 10-11:00 a.m.EST

Live online at www.wlf.org

Submit questions to interactive@wlf.org


John H. Beisner

Jessica Davidson Miller

Partners, O’Melveny & Myers LLP

Our speakers will discuss why the mass tort litigation process doesn’t effectively serve plaintiffs and defendants and propose a

simple, four-point plan for procedural reforms that will return mass torts to their original purpose – meting out fair justice to injured parties.

Mr. Beisner and Ms. Miller are the authors of a recent WLF Monograph,

Litigate the Torts, Not the Mass: A Modest Proposal for Reforming How Mass Torts are Adjudicated.

January 29, 2009 | Permalink | Comments (0) | TrackBack

January 27, 2009

CPSC meeting with manufacturers concerning exclusions to lead testing

The CPSC posted details yesterday of a meeting with various trade associations including the Craft Yarn Council and Needlearts Association on January 22 where they were presented information about the lack of lead in certain materials. Here is a summary slide for one of the presentations:

"In conclusion, all the test data gathered to date on products made from pre-dyed or un-dyed fibre, have shown that consumer craft products sold and distributed in the US are essentially lead and phthalate free. While materials and test data presented today has focused on the manufacturing of handknit products, all other products made from natural or synthetic fibres would yield very similar results.

We believe that consumer craft products manufactured and distributed in the US markets today are significantly below the minimum lead and phthalates content levels established by the CPSIA 2008, and all consumer craft products should be exempt from testing requirements."

See http://cpsc.gov/about/cpsia/cpsia.html for links to the meeting materials and videos.

If the CPSC's scientists agree, then the CPSC will have to go through the exemption/exclusion procedures set forth in the Notice of Proposed Rulemaking.

Kenneth Ross

January 27, 2009 | Permalink | Comments (0) | TrackBack

January 25, 2009

CPSIA activity for last week

After Congressional leaders sent their letter of January 16th to the CPSC (see January 20 post), two Republican Congressman sent a letter to Chairman Waxman (see Barton letter to Waxman 1.21.09 ) on the 21st demanding hearings.  Business leaders and small manufacturers have jumped in vociferously on what needs to be done (see Rick Woldenberg's letter).

It is clear that there is not enough time for the CPSC to clarify the issue by the implementation date of February 10.  There are time deadlines for passage of final rules that will not allow the current proposed final rules to be implemented until well after February 10. 

This is a fascinating conundrum created by Congress and/or the CPSC.  And small business owners are stuck in the middle.  Many are throwing away inventory and going out of business.  Many are trying to get their products tested.  There is a group of manufacturers planning to file suit, possibly by this week, asking for a court to stop implementation of the Act. 

It is unlikely that most manufacturers and retailers will be in full compliance by February 10 and there is a question mark about enforcement of these rules, many of which are unclear and incomplete.  And then what will the State Attorneys General do?

Therefore, the only feasible alternative is for Congress to delay implementation.  Many in Congress will not agree to this, in part, because of pressure from the consumer groups (see Consumer's Union letter to CPSC Acting Chair ).  However, Congress may do something this week or next to either clarify the law, give further guidance on legislative intent to the CPSC, or maybe even delay implementation.

See http://reformcpsia.org/ for latest activities by some small manufacturers. 

Kenneth Ross

January 25, 2009 | Permalink | Comments (0) | TrackBack

January 23, 2009

More Problems With CPSIA - The Lead Testing Requirement

The Consumer Products Safety Improvement Act includes a requirement that sellers of all products intended for use primarily by children under the age of 12 be tested for lead content.  This requirement raises the prospect that many small makers of products intended for children - even products that are extremely unlikely to contain any lead, such as the yarn used in a child's sweater or a bicycle tire - will be overburdened by the testing requirement.  Furthermore, second-hand and thrift shops that sell children's goods may face the prospect of liability for unwittingly offering for sale a product containing lead in an amount that exceeds the law's very low threshold.  The law's principal authors have now asked the Consumer Product Safety Commission to make some exceptions from the law's requirements.  However, even if CPSC has the power to interpret the law through regulations as Representatives Waxman and Rush and Senators Pryor and Rockefeller urge, the agency cannot make those changes without first proposing exemptions and then allowing a 30-day notice and comment period, and that cannot be accomplished before the CPSIC becomes effective on February 10, 2009.  See Walter Olson's commentary for Forbes.com here.


January 23, 2009 | Permalink | Comments (0) | TrackBack

Prosser and Strict Products Liability

Professor Christopher J. Robinette at Widener University School of Law has authored a very interesting article regarding several of William Prosser's seminal accomplishments such as his influential contribution to the development of strict products liability law.  Professor Robinette's article is based in significant part on a 70-year-old notebook containing the class notes of Leroy Merrifield, a student of Prosser when he taught Torts at the University of Minnesota in 1938-39.  A summary, a link to an abstract of, and several posts regarding the article can be found here on the TortsProf Blog.


January 23, 2009 | Permalink | Comments (0) | TrackBack

January 21, 2009

Peanut Butter Related Salmonella Lawsuit Filed

A Marler Clark press release notes that it filed a lawsuit on January 20 against the Peanut Corporation of America in the United States District Court for the Middle District of Georgia based on the national outbreak of Salmonella Typhimurium in peanut butter.  The complaint was filed on behalf of Vermont residents whose son was sickened in the outbreak.  Seattle lawyer William Marler and Patrick Flynn of Albany, Georgia represent the minor and his parents. 


January 21, 2009 | Permalink | Comments (0) | TrackBack

January 20, 2009

Congress applies pressure on CPSC

Congress sent a letter to the CPSC last Friday concerning CPSIA and implored CPSC to clarify things for manufacturers in four areas so they could comply with the February 10 implementation date of some of the Act's provisions.  Procedurally this is impossible.  The exemptions being proposed cannot take place until after February 10.  The Notices of Proposed Rulemaking have a comment period until February 17.  CPSC has said that products are not exempt from testing until the proposed rulemaking is finalized and published in the Federal Register. 

Kenneth Ross

January 20, 2009 | Permalink | Comments (0) | TrackBack

January 14, 2009

Fifth Circuit Applying Mississippi Law Concludes Beryllium Sensitization is Not a Compensable Injury

Harris v. Brush Wellman, Inc., a  Fifth Circuit negligence, product liability, and breach of warranty case applying Mississippi law, arose out of claims by the plaintiffs alleging that Brush's beryllium-containing products sold to the plaintiffs' employers caused personal injuries to the plaintiffs, including beryllium sensitization (“BeS”) and chronic beryllium disease (“CBD”).   Harris was consolidated with an earlier case, Paz v. Brush Engineered Materials, Inc., alleging a medical monitoring claim.  The Paz  plaintiffs' medical monitoring cause of action was dismissed earlier by the district court.  Paz v. Brush Engineered Materials, Inc., 351 F.Supp.2d 580 (S.D. Miss. 2005) (Paz I).    The case was appealed to the Fifth Circuit,  Paz v. Brush Engineered Materials, Inc., 445 F.3d 809, 815 (5th Cir. 2006) (Paz II), which certified the issue of whether Mississippi recognized a medical monitoring cause of action without proof of physical injury to the Mississippi Supreme Court.  The supreme court held that creation of a medical  monitoring cause of action would be contrary to Mississippi common law, which requires proof of an identifiable injury to support recovery in a negligence claim.  Paz v. Brush Engineered Materials, Inc., 949 So.2d 1, 3 (Miss. 2007) (Paz III).  The Fifth Circuit then affirmed the district court's decision.  483 F.3d 383 (5th Cir. 2007). 

A primary  issue in the Harris case was whether beryllium sensitization is a compensable injury under Mississippi law.  The evidence in the case clearly established that "excessive exposure to beryllium provokes a physical change in the body, causing BeS."  The record in the case established that some of the plaintiffs were sensitized to beryllium, and that there was a dispute of material fact concerning whether another plaintiff was so sensitized.  he critical issue, however, was "whether any physiologic change in the body rises to the level of compensable injury pursuant to Mississippi law."  (Emphasis the court's). 

The district court concluded that the plaintiffs did not establish a compensable injury under Mississippi law.   The plaintiffs appealed to the Fifth Circuit, which affirmed the dismissal.

Mississippi permits recovery in cases where future consequences from an injury to a person will occur, if those consequences are established in terms of reasonable probabilities.  The Fifth Circuit concluded, however, that on the record there was no dispute that the rate of progression of BeS to CBD is not known to any degree of reasonable medical certainty.
Mississippi law governing negligence, products liability, and breach of warranty claims require an identifiable injury.  The Fifth Circuit thought that the Mississippi Supreme Court's decision on medical monitoring in Paz III provided the best insight into whether BeS would be a compensable injury under Mississippi law.  Relying primarily on that decision, the Fifth Circuit concluded "that the same 'sub-clinical, cellular, and sub-cellular' changes alleged by the Paz plaintiffs" could not "now constitute a legal injury, without completely ignoring the Mississippi Supreme Court's holding in Paz III," and held that BeS is not a compensable injury.


January 14, 2009 | Permalink | Comments (0) | TrackBack

January 7, 2009

Product Liability Prevention (PLP) in Tough Economic Times

Company personnel involved in safety and quality are usually the first to be laid off in tough economic times.  In the late 70's, when I was a young in-house lawyer, my company laid off all PLP staff except for the manager.  Today, I am seeing many safety professionals out of work.  And those companies are going to suffer for it.  I just finished a new article on how companies can staff for PLP, how to use lawyers for such efforts, and how to do effective PLP in these economic times. 

Kenneth Ross

January 7, 2009 | Permalink | Comments (0) | TrackBack


New CPSC law has continued to turn into a big mess.  See my CPSIA article that is current as of today.  Includes a discussion of CPSC actions taken yesterday on various proposals concerning lead and testing requirements.  Also discusses what things are on tap for the next month.

Kenneth Ross

January 7, 2009 | Permalink | Comments (1) | TrackBack

January 1, 2009

Big fight over effective date of phthalate ban

There is a fascinating legal fight going on over the effective date of the phthalate ban as enacted by Congress in the Consumer Product Safety Improvement Act that was signed by the President on August 14, 2008.  The Act says that certain products with phthalates are banned starting February 10, 2009.  A normal reading of that act is that it is against the law to sell products with banned phthalates on and after February 10, 2009.  In a letter from the CPSC General Counsel dated November 17, 2009, the CPSC has taken the position that this ban does not apply to products manufactured prior to February 10, 2009.  Therefore products with banned phthalates can still be sold after February 10.  This letter was sent in response to industry requests for more time to comply.

Senator Barbara Boxer of California, who wrote this provision, said that this was not her intent and the CPSC's interpretation was blatantly incorrect.  On December 4, 2008, the Natural Resources Defense Council and Public Citizen filed a Complaint against the CPSC for declaratory and injunctive relief. 

To add to the confusion, the California State Attorney General issued a letter dated December 3, 2008, referencing California's ban on certain phthalates that was passed October 2007 and is effective January 1, 2009, and saying that California's law is not preempted by the CPSIA ban or the CPSC's interpretation of its effective date.  The California letter has an interesting discussion on federal preemption over inconsistent state legislation.  Therefore, it is against the law to manufacture, sell, or distribute products with banned phthalates starting today. 

How are manufacturer's responding to this incredible confusion?  Will California or the CPSC enforce these bans?  What will retailers do as far as accepting products that have banned phthalates?  What will the court hearing the NRDC suit do?  Time will tell.

Kenneth Ross

January 1, 2009 | Permalink | Comments (1) | TrackBack