Enforcement

Lynn L. Bergeson, "FTC Targets Biodegradable Materials," Chemical Processing, November 17, 2015.

On October 20, 2015, the U.S. Federal Trade Commission (FTC) released a “Final Order and Opinion” against ECM BioFilms, Inc., stating that ECM made false and unsubstantiated environmental claims that its additives for plastics (ECM Plastics) would make treated plastics biodegrade in a landfill. The opinion come two years after FTC issued an administrative complaint against ECM and ten months after an FTC Administrative Law Judge (ALJ) issued an Initial Decision finding ECM violated FTC Act Section 5 because evidence did not support its claims that ECM Plastics would biodegrade plastics within nine months to five years. Significantly, FTC reverses part of the ALJ’s decision, finding that FTC counsel hadn’t met its burden in proving ECM made false, misleading, and material-implied biodegradable claims that ECM Plastics will completely biodegrade in a landfill within one year, a temporal period identified in the FTC Green Guides.

Lynn L. Bergeson, "OSHA Clarifies GHS Compliance Efforts," Chemical Processing, June 16, 2015.

On May 29, 2015, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) published the “Interim Enforcement Guidance for Hazard Communication 2012 (HCS 2012) June 1, 2015 Effective Date” (Interim Guidance). This supplements the February 9, 2015, “Enforcement Guidance for the Hazard Communication Standard’s (HCS) June 1, 2015 Effective Date” (Enforcement Guidance). The Interim Guidance clarifies specific points to manufacturers, importers, and distributors on OSHA’s HCS enforcement strategy.

Lynn L. Bergeson, "Misleading Recycled Content Claims are Criminal," Pollution Engineering, September 1, 2014.

The Federal Trade Commission (FTC) has stepped up its enforcement initiatives and recently settled two cases with companies that market plastic lumber and related products. FTC alleged that these companies misled consumers in violation of Section 5 of the FTC Act in their marketing materials regarding the environmental attributes of their products.

Lynn L. Bergeson, Timothy D. Backstrom, "EPA Issues Stop Sales Order for Unregistered Food Containers Containing Nanosilver: What Are the Implications?," Nanotechnology Law & Business, Volume 11, Issue 3, 2014.

On March 19, 2014, the U.S. Environmental Protection Agency (EPA) issued an administrative order to Pathway Investment Corp. (Pathway) of Englewood, New Jersey, to stop the sale of plastic food storage containers that are not registered with EPA, in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). According to a press release issued on March 31, 2014, by EPA concerning the stop sale order, the Company’s Kinetic Go Green Premium Food Storage Containers and Kinetic Smartwist Series Containers contain “nanosilver” as an active ingredient, and the Company markets other products as containing nanosilver, which the Company claims helps reduce the growth of mold, fungus, and bacteria. EPA notes that such claims can be made only for products that have been properly tested and are registered under FIFRA. EPA states that, in addition to the order sent to Pathway, it also issued warning letters to Amazon, Sears, Walmart, and other large retailers directing them not to sell these food storage containers. This enforcement action put nanosilver in the public spotlight, and not in a good way. This article summarizes recent regulatory developments pertinent to nanosilver, and discusses the recent EPA enforcement action to explain what the case means, and what it does not mean.

Lynn L. Bergeson, "$1.4 Million Civil Penalty for TSCA Violations," Pollution Engineering, April 2012.

If anyone is thinking big penalties under the Toxic Substances Control Act (TSCA) are a thing of the past, think again. On Feb. 7, 2012, EPA announced that the Dover Chemical Corp. has agreed to pay a $1.4 million civil penalty for the unauthorized manufacture of chemical substances at facilities in Dover, Ohio, and Hammond, Ind. The settlement resolves alleged violations of TSCA premanufacture notice (PMN) obligations for the production of various chlorinated paraffins. According to EPA, the company produces the “vast majority” of chlorinated products sold in the United States. As part of the settlement, the company has ceased manufacturing short-chain chlorinated paraffins (SCCP), which have persistent, bioaccumulative and toxic (PBT) characteristics.


 
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