New York Court of Appeals Addresses the Duty to Warn

On June 28, 2016, the Court of Appeals decided the following question: Does a manufacturer have a duty to warn about asbestos-containing parts made by someone else but used with its non-asbestos product? The Court answered, “Sometimes,” under a relatively narrow set of circumstances.

The plaintiff in Dummitt v. Crane Co., a Navy boiler technician from 1960-1977, alleged that he developed mesothelioma from exposure to asbestos insulation used with Crane Co.’s high-temperature steam valves. Crane Co. didn’t make the insulation, and its valves did not contain any asbestos. Continue Reading

GE Salmon: What’s Really at Steak

In April 2016, we posted about the lawsuit brought by environmental food and safety groups, along with fisherman trade associations, to reverse the FDA’s approval of a genetically engineered (GE) salmon. The complaint alleges that the FDA failed to evaluate how the GE salmon will impact the environment and that the farmed salmon will inevitably escape, “interbreed with wild endangered salmon, compete with them for food and space, or pass on infectious disease . . . .” Continue Reading

Toxic Substances Control Act Revised for the 21st Century

On June 22, 2016, President Obama signed the Lautenberg Chemical Safety Act into law.  The Act is the first significant change to the 1976 Toxic Substances Control Act in 40 years and amends the Environmental Protection Agency’s (EPA) methods for reviewing chemical substances before they are marketed and allowed to be used in consumer products.

The Act has several new key features: Continue Reading

Why Autonomous Cars Aren’t Hit by the Trolley Problem

Imagine you are driving down a two-lane mountain road.  As you round a bend, you see five pedestrians in your lane.  You do not have enough space to stop before hitting them, but in the other lane there is only one pedestrian.  Do you stay in your lane, killing five? Do you swerve into the other lane, killing one?  Or do you steer off the road and down the mountain, avoiding the pedestrian fatality but likely killing yourself?  Can you make that decision better than an autonomous car? Continue Reading

Chipotle Faces New Challenges

Are Chipotle’s problems over?  Not yet.  Chipotle’s stock price  plummeted after a series of foodborne illness outbreaks linked to its stores. Chipotle continues to face new lawsuits related to its food safety problems. This one comes from its investors: Chipotle shareholders have alleged that the fast food chain failed to disclose that “its quality controls were inadequate to safeguard consumer and employee health.”  Since the suit was filed in January 2016, numerous additional plaintiffs have joined in and the court has appointed a lead plaintiff and plaintiffs’ counsel.  Chipotle has not answered the claims yet. Continue Reading

FDA Extends Regulation of Tobacco Products to E-Cigarettes

The FDA soon will regulate e-cigarette makers and distributors. The rules present new hurdles for manufacturers of existing e-cigarette products as well as future products. The new “deeming regulations” restrict youth access to e-cigarettes and extend certain regulations that apply to traditional tobacco products to e-cigarettes.

On May 5, 2016, the U.S. Food and Drug Administration announced its regulatory authority over e-cigarettes. Rules aimed at restricting youth access are effective as soon as August 2016. While the announcement did not come as a surprise—the FDA proposed regulations over two years ago—many in the industry argue that the FDA has overstepped its authority. Continue Reading

Lawsuit Challenges FDA Approval of Genetically Engineered Salmon

Last November, we posted that the Food and Drug Administration (FDA) had approved a genetically engineered (GE) salmon: AquaBounty Techonologies’ AquAdvantage Salmon. This approval marked the first time that the FDA authorized selling a genetically engineered animal for human consumption.

Immediate backlash followed the FDA’s November 19, 2015 announcement from environmental and consumer advocacy groups. On March 31, 2016, environmental and food safety groups, as well as fisherman trade associations, sued the FDA and related agencies in federal court in California. The suit seeks to reverse the FDA’s approval of the fish for human consumption. Continue Reading

Government Turf: Will the CPSC Investigate Rubber Infill?

Calls for a government-led investigation of the potential negative health effects of crumb rubber turf are getting louder, and the Consumer Product Safety Commission is listening. Crumb rubber turf infill consists of black pellets of ground-up rubber, and it’s become increasingly popular in the construction of sports fields. Some are concerned, however, that crumb rubber turf may expose athletes to cancer-causing chemicals.

On Wednesday, January 27, CPSC chairman Elliot F. Kaye, in statements to a Florida television station, indicated that CPSC will investigate the potential risks of rubber turf.

Continue Reading

Supreme Court Says Offering to Settle Cannot Moot Class Action Suits

Last week, the US Supreme Court ruled that an offer of judgment under Federal Rule of Civil Procedure 68 made to the lead plaintiff in a class action lawsuit, in addition to a separate free-standing settlement offer in the same amount, does not render the lawsuit moot.

In Campbell-Ewald Co. v. Gomez, No. 14-857, 2016 WL 228345 (U.S. Jan. 20, 2016), Jose Gomez filed a class-action lawsuit seeking damages under the Telephone Consumer Protection Act as a result of unwanted text messages he and others received from Campbell-Ewald Company.  Before Gomez had filed his motion for class certification, Campbell made an offer of judgment to him under Federal Rule of Civil Procedure 68 which would have satisfied his personal claim entirely.  Gomez allowed this offer to lapse after 14 days, as specified by the rule.  Campbell then moved to dismiss the case, claiming that no controversy remained after its offer provided Gomez with complete relief.  Both the District Court and the Ninth Circuit Court of Appeals disagreed with Campbell. Continue Reading

Researchers Turn Their Attention to Diacetyl in E-Cigarettes

On December 8, 2015, researchers at Harvard University announced that they had examined a small sample of flavored e-cigarette products and found that some contained diacetyl, a chemical suspected of causing respiratory illness. In the wake of this announcement, some news organizations reported that the Harvard paper established a “link” between e-cigarettes and bronchiolitis obliterans, a disease associated with diacetyl exposure.

But the Harvard study did not discuss any connection between diacetyl in e-cigarettes and respiratory illness. The researchers merely noted the presence of diacetyl in e-cigarettes and that diacetyl has been associated with respiratory disease in the industrial context. The study drew no conclusions about the possible health risks that vaping poses to consumers. Instead, the study’s authors recommended that this new potential source of exposure to diacetyl be further evaluated. Continue Reading

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