Product Stewardship, Green Chemistry and Sustainability

Companies are under increased pressure to reduce the risk of adverse environmental health and safety impacts throughout a product’s lifecycle. Keller and Heckman advises on regulatory and compliance issues in connection with the entire life cycle of products, including product development, advertising and marketing, sale, use, and disposal of consumer and industrial products. We also counsel clients on a wide range of sustainability and green chemistry legal issues, including the application of a growing number of regulatory standards, and reporting and disclosure obligations. Our work encompasses:

  • Compliance advice and representation in administrative enforcement actions;
  • Public policy advocacy before federal, state, national and international authorities; and
  • Litigation defense.

Keller and Heckman uses an interdisciplinary approach to assisting clients with increasingly complex local, national and global legal requirements governing the environmental impact of products, including ones related to product development and manufacturing, the use of chemicals, and environmental and sustainability claims. We have lawyers with expertise in product safety, advertising, chemical control, environmental protection and litigation, in addition to an in-house scientific team of chemists and toxicologists. 

Keller and Heckman has counseled trade associations and corporate clients on matters related to the use of chemicals in consumer and industrial products, including their impact on public health and the environment.  We advocate sound risk-based approaches before federal and state legislative bodies; regulatory agencies, such as the Consumer Product Safety Commission (CPSC) and the Environmental Protection Agency (EPA); and international regulatory bodies, including Health Canada and the European Chemicals Agency (ECHA). We also advise clients on meeting federal and state energy efficiency requirements, purchasing standards for environmentally preferable products, and qualifying for the U.S. Department of Agriculture’s (USDA) biobased certification program.

Some areas of focus within our Product Stewardship, Green Chemistry and Sustainability practice are:

Regulatory Compliance: We advise clients on compliance with the growing number of regulations pertaining to product stewardship and sustainability. These include CPSC and related global product safety reporting requirements, and reporting obligations to EPA under the Toxic Substances Control Act (TSCA). Our attorneys have extensive experience counseling clients on compliance with legislation developed by the Coalition of Northeastern Governors (CONEG) phasing-out the use and presence of mercury, lead, cadmium and hexavalent chromium in packaging, and on other regulatory restriction on the use of heavy metals in consumer products. We also assist clients with requirements governing the use of ultraviolet and other forms of radiation, brominated flame-retardants, and volatile organic compounds (VOCs) in consumer and industrial products, as well as developing issues for nanotechnology-based products in an array of industrial and consumer applications. We help design scientific studies, evaluate available literature on toxicological risks, conduct exposure or migration assessments, and assist in responding to litigation or enforcement initiatives. 

Environmental Marketing Claims: Our attorneys help clients navigate the legal landscape associated with the marketing of their “green” products, and avoid allegations of deceptive practices and other potential risks. Keller and Heckman is well-known internationally for its advertising expertise, including on environmental and sustainability claims, having helped the International Chamber of Commerce (ICC) Marketing and Advertising Commission develop its global Framework Guides for Environmental Marketing Claims. We counsel clients on the U.S. Federal Trade Commission’s (FTC) Guides for the Use of Environmental Marketing Claims (Green Guides) and represent clients in connection with challenges to environmental and other claims. More specifically, we advise global clients on “free of,” “safe,” “non-toxic,” “compostable,” “recyclable,” “sustainable” and other claims, and the type and amount of data needed to substantiate them.

Green Chemistry Laws: Keller and Heckman has assisted clients in “Green Chemistry” rulemaking proceedings before a variety of state bodies. We have been involved with the ongoing development of California’s Green Chemistry program since 2006, and have submitted comments on draft regulations, supported risk-based standards, and participated in forums and meetings. A number of other states have also implemented or proposed similar “green chemistry” regulations, including Connecticut, Maine, Minnesota and Washington. These programs typically include a process to identify and prioritize “chemicals of concern,” and require manufacturers to report on the use or presence of those chemicals and to identify alternatives. Our attorneys assist clients in green chemistry legislative strategy, represent clients in green chemistry rulemaking proceedings, and advise consumer product manufacturers and importers/retailers on green chemistry reporting obligations and alternative assessment initiatives.

We also have extensive experience with California’s Proposition 65, including assessing and advising clients on compliance obligations, assisting in the development of estimated “no significant risk” levels, responding to notices of violation, defending against claims, and negotiating settlements.

Waste Reduction and Recycling: Our attorneys have counseled clients on a wide range of laws and regulations governing waste disposal and recycling, including the Resource Conservation and Recovery Act (RCRA); the Clean Air Act; the Clean Water Act; and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  We have also assisted clients with requirements under the European Union (EU) Packaging and Packaging Waste Directive (94/62/EC). In the area of electronic and electrical equipment waste, we have advised clients on compliance with an increasing number of global laws and regulations, including the more than 20 state laws on electronic waste (e-waste) in the U.S.; and Directive 2002/95/EC on the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (RoHS), Directive 2011/65/EU on the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (recast RoHS), and Directive 2002/96/EC on Waste Electrical and Electronic Equipment (WEEE) in the EU.  We are also assisting companies interested in setting up voluntary recycling programs or advancing legislation to assure that recycling programs are operated on a fair share basis.

Sustainability, Energy Efficiency and Corporate Responsibility:  Global companies are examining how to improve their environmental footprint, responding to laws as well as supply chain requirements for products and services with a reduced environmental footprint and for confirmation of ethical operations.  We advise clients on Department of Energy (DOE) energy efficiency rules and waiver requests, advise on energy claims, including Energy Star claims and requirements, and assist in defending them in compliance actions brought by DOE or EPA.  We advise trade associations and corporate clients on obligations under the Conflict Minerals Act and California Transparency in Supply Chains Act.  Our attorneys are actively engaged in policy debates about the role of private standards in these areas, including the consumer protection and competition aspects.    

Representative Matters

  • Assisted clients in responding to proposals to limit or ban lead, cadmium, alleged endocrine-disrupting substances such as phthalates and bisphenol-A, ozone-depleting chemicals, formaldehyde, fluoropolymers, vinyl and other substances in consumer products.
  • Represented owner/operator of food manufacturing facilities in responding to state enforcement actions regarding compliance with air, wastewater and hazardous waste permitting and handling requirements.
  • Defended chemical and personal care products manufacturers in FAA enforcement actions regarding alleged violations of U.S. Department of Transportation hazardous materials regulations.
  • Advised company in developing/implementing strategy to respond to a state enforcement action over alleged emission reduction credit deficiencies.
  • Counseled company in resolving state air enforcement matter regarding alleged noncompliance with permitted emission and production throughput limits.
  • Assisted companies in responding to alleged violations of California Proposition 65 involving various chemicals.
  • Represented appliance manufacturers in responding to compliance inquiries under federal energy efficiency regulations.
  • Represented clients in FTC investigations of environmental and “green” marketing claims.
  • Assisted clients on understanding the Conflict Minerals Act and implementing sound compliance practices.
Please contact sustainability@khlaw.com for more information

Follow Product Stewardship, Green Chemistry and Sustainability developments and other similar topics on Keller and Heckman’s Consumer Protection Connection blog.

 

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