With little public notice the final version of the Green Chemistry regulations has been released. The final regulations show no substantive changes made to the regulations from the April version that has already been reviewed and commented upon. OAL has until August 29 to complete its review of the regulations which requires OAL to make a number of findings and when OAL signs off the regulations become effective. http://www.dtsc.ca.gov/SCPRegulations.cfm
In summary, the DTSC from a list of “Candidate Chemicals” will identify particular “Chemicals of Concern” and “Priority Products” for which an analysis of alternative chemicals must be accomplished to determine how to limit exposures or the adverse level of environmental impacts. The DTSC is then to identify and require implementation of a regulatory responses for Priority Products if the manufacturer retains theProduct and the chemical of concern. There are also listing and delisting provisions for Candidate Chemicals.
This is from OEHHA’s website; the colored comments are ours.
On July 30, 2013, the Office of Environmental Health Hazard Assessment (OEHHA) will hold a public pre-regulatory workshop for the purpose of gathering input from interested parties on the content of a regulation that would address Proposition 65 warnings. Such a regulation, if formally proposed and adopted, would either supplement or replace existing OEHHA regulations governing Proposition 65 warnings and conform to any statutory changes if enacted.
July 12, 2013 the FDA announced a proposed action level of 10 ppb (parts per billion) for arsenic in apple juice. The 10 ppb is the same as EPA arsenic in drinking water standards.
“The FDA is committed to ensuring the safety of the American food supply and to doing what is necessary to protect public health. “We have been studying this issue comprehensively, and based on the agency’s data and analytical work, the FDA is confident in the overall safety of apple juice for children and adults.” “While the levels of arsenic in apple juice are very low, the FDA is proposing an action level to help prevent public exposure to the occasional lots of apple juice with arsenic levels above those permitted in drinking water,” said Michael R. Taylor, the FDA’s deputy Commissioner for Foods.
The Supreme Court has shifted the land use playing field back towards landowners and away from government freedom to impose conditions on the development of property. While by no means invalidating local government land use regulatory authority, the Court did hold that imposing an overreacting condition on development can constitute a taking.
In a case involving Florida swampland of all things, Koontz v. St. Johns River Water Management Dist., the US Supreme Court held a government entity’s conditions of permit approval requiring a landowner to either build on only 1 acre and dedicate his remaining 14.9 acres for conservation, or instead fund offsite wetlands mitigation for the right to build on 3.7 acres was unconstitutional extortion. The decision was made in light of the “special vulnerability of land use permit applicants to extortionate demands for money.” Constitutional doctrine forbids pressuring individuals to forfeit constitutional rights, in other words, pressuring them to do what the government cannot constitutionally order from them. Here a water district’s demands impermissibly burdened a landowner’s 5th Amendment right to not have property taken without just compensation. Continue Reading
By Guest Blogger:
Pawel Woloszyn, President
Pacific Environmental Management, Inc.
A new ordinance that would expand the boundaries and types of projects where soil sampling would be required and add the requirement for groundwater sampling under certain circumstances appears set to be passed. An approved site mitigation plan would be required where applicable appearing most likely to include, but not be limited to, the potential for vapor intrusion. The proposed ordinance would modify the existing “Maher Ordinance” which has been in place since 1986 and be applicable to a much larger area of San Francisco real estate.
Judge Phyllis Hamilton of the U.S. District Court of Northern California ruled that the FDA must publish all of the final regulations required under the Food Safety Modernization Act by June 30, 2015. This ruling expressly rejected the FDA’s proposed target timeline for 2015-2016 for the publication of the final rules.
As stated in the order:
April 22, 2013, the court issued an order granting plaintiffs’ motion for summary judgment and denying defendant’s motion for summary judgment. The court granted plaintiffs’ request for a judicial declaration that the FDA had violated the FMSA by failing to promulgate the required regulations in accordance with the deadlines mandated by Congress…. As the court found in the April 22, 2013 order, by setting deadlines for the promulgation of the implementing regulations, Congress indicated that the rule-making process should be closed-ended, rather than open-ended….In completing the FDA’s required rule making under the FSMA, with regard to proposed regulations that have not yet been published in the Federal Register, defendant is ORDERED to publish all proposed regulations by November 30, 2013. In each instance, the close of the comment period shall be no later than March 31, 2014. All final regulations shall be published in the Federal Register no later than June 30, 2015. Apartfrom these deadlines, defendant shall have the discretion to prioritize other matters relating to the rule making process.
Thus the process for the regulations that are out for review now, Preventive Controls and the Produce Safety Rules are on a faster track than had been contemplated; perhaps leaving no time for the circulation of a revised set of rules as had been contemplated by some parties.
By Kay Brooks
Today the United States Supreme Court ruled that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional. The case, United States v. Windsor, 570 U.S. ____ (2013), involved the portion of DOMA that stated that the federal government will only recognize marriages between opposite-sex spouses for purposes of federal law. There are over 1,000 federal laws that address marital status, and DOMA’s Section 3 denied validly married same-sex couples myriad protections and responsibilities under federal law. Because of the Windsor decision, same-sex spouses who are validly married under state law will now also be treated as married under federal law.
Edith Windsor married Thea Spyer, her partner of 46 years, in Ontario, Canada, in 2007. At the time, their state of residency, New York, did not allow same-sex marriage, but it did recognize the validity of their Canadian marriage. When Ms. Spyer died in 2009, she left her entire estate to Ms. Windsor. Ms. Windsor filed Ms. Spyer’s federal estate tax return and claimed that she was owed a refund of $363,053 as the surviving spouse. Under federal tax law, property passing from a deceased spouse to a surviving spouse is not subject to estate tax. However, DOMA prevented the IRS from recognizing Ms. Windsor and Ms. Spyer’s marriage, and the refund claim was denied. The federal District Court and the Second Circuit Court of Appeals ruled in favor of Ms. Windsor, holding that the applicable provisions of DOMA were unconstitutional and ordering that the Treasury refund the estate tax paid to Ms. Windsor with interest. The government appealed that decision to the U.S. Supreme Court.
The United States Supreme Court issued its opinion in Hollingsworth v. Perry, 570 U.S. ___ (2013), this morning, regarding the validity of Proposition 8. The outcome is that same-sex marriage is once again legal in California. The Supreme Court did not rule on a specific right to same-sex marriage, but rather it stated that neither it nor the federal Court of Appeals for the Ninth Circuit (which includes California) had the power to hear the case. Hollingsworth is largely a procedural case, and it requires some background to fully understand.
In 2008, the California Supreme Court held that the California Constitution’s equal protection clause prohibited limiting marriage to opposite-sex couples. Shortly thereafter, California voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples. The Respondents in Hollingsworth, two same-sex couples, filed suit against various California state and local officials in federal District Court asserting that Proposition 8 was invalid under the Fourteenth Amendment of the U.S. Constitution. California state officials declined to defend Proposition 8, and the District Court allowed the Proponents (the parties who put Proposition 8 on the ballot) to defend it. The District Court then declared Proposition 8 unconstitutional, and state officials declined to appeal. The Proponents then appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit ultimately held that Proposition 8 was unconstitutional, and the Proponents appealed to the U.S. Supreme Court. Even though the Ninth Circuit found Proposition 8 to be unconstitutional, it put a “stay” in place, meaning that same-sex marriages were put on hold while the appeal to the Supreme Court was pending.
Food Safety Product Liability Claims
Mastering the Standards for Fault, Causation and Damages in Foodborne Illness Litigation
Thursday, June 13, 2013 (2 days) 1:00pm-2:30pm EDT, 10:00am-11:30am PDT
This CLE webinar will provide product liability defense and plaintiff counsel with a review of the legal issues particular to foodborne illness litigation and will discuss the definition of standards for fault, causation and damages.
The CDC estimates that there are over 48 million cases of foodborne illnesses in the U.S. each year. Jury verdicts can reach millions of dollars and garner unfavorable media attention. Whether bringing or defending a food safety claim, success hinges upon mastering the standards unique to these cases.
Foodborne illness liability requires the establishment of fault and causation by the plaintiff. Both plaintiff and defense counsel must understand the scientific link between the foodborne illness, the alleged harm to a plaintiff, and the defendant’s product to prove or defend against such suits.
In food safety litigation, counsel must also understand how to assess damages. The financial liability of all parties involved, the anticipation of plaintiffs’ future medical costs, and defendants’ insurance coverage all play a key role in determining damages.
Listen as our authoritative panel of product liability attorneys defines the standards for establishing fault and causation and proving damages in food safety cases. They will also discuss current trends in food safety litigation and best practices to bring or defend these cases.