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California Prop. 65 Warning Requirement for THC Makes CBD, Hemp and Cannabis Products a Target

The California Proposition 65 warning requirement for THC took effect on January 3, making cannabis, hemp and CBD products a likely target for private enforcement actions.

Although under federal law CBD products are allowed to contain up to 0.3 percent THC, or Δ9-Tetrahydrocannabinol, no safe harbor level of exposure to THC has been established under Prop. 65.  That means private enforcers can argue that any detectable amount can subject a product to the Prop. 65 warning requirement.  Companies can work with consultants to develop a safe use determination for THC, but until it is established and accepted, enforcement actions will be a material risk.  Notably, the Prop. 65 listing applies to Δ9-THC, although the Prop. 65 requirements may still be triggered by residual Δ9-THC present in other THC products, like Δ8-THC distillates.

At the same time that THC was added to the Prop. 65 list, California’s Office of Environmental Health

California and New York Roll Back Certain COVID-19 Restrictions

January 28, 2021

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In late 2020, many states enacted stay-at-home orders or issued new lockdowns in an effort to curb a perceived risk of elevated infection rates during the holiday season.  With the holidays behind us, and as hospitalizations rates begin to decline, and ICU capacity increases, some states have begun the process of rolling back their more stringent holiday restrictions.

The following is a summary of the steps that California and New York are taking to ease their restrictions.

California

The Governor announced on Monday, January 25th, that the Regional Stay at Home Order, which went into effect in early December, was being lifted.  The state now goes back to the Blueprint for a Safer Economy Plan that was in place before the Regional Stay at Home Order went into effect.

With the exception of four counties, the entire state is in the Widespread Tier under the plan, which is the most restrictive.

State-by-State Regulation of PFAS Substances in Drinking Water

January 22, 2021

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Many states have expressed frustration with the lack of an enforceable federal per- and polyfluoroalkyl substances (“PFAS”) drinking water standard, and have started the process of regulating PFAS in drinking water themselves.  As a result, states have adopted a patchwork of regulations and standards that present significant challenges to impacted industries.  This client alert focuses on the maximum contaminant levels (“MCLs”), as well as guidance and notification levels for PFAS – typically perfluorooctane sufonic acid (“PFOS”) and perflurooctanic acid (”PFOA”)  – in drinking water that have been enacted or proposed by various states.

1. State Regulations

The following chart is current as of January 19, 2021.  Some states, including Rhode Island and Washington, have proposed Drinking Water regulations for PFAS, reinforcing the fact that this is an area of regulation that is developing quickly.  In addition, President Biden’s Environmental Justice Plan includes a commitment to set “enforceable limits for PFAS in the

Multiple States Enact Drinking Water and Groundwater Regulations for PFAS Chemicals

January 5, 2021

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Although much of the world’s focus has been consumed by the global pandemic, six states have issued important regulations for per- and polyfluoroalkyl substances (“PFAS”), which are expected to have significant impacts on businesses in those states.  Specifically, Massachusetts, Michigan, New Hampshire, New Jersey, New York, and Vermont have enacted Maximum Contaminant Levels (“MCLs”) for certain PFAS substances, including perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (“PFOA”) in drinking water.

In addition, Michigan and New Jersey have established groundwater quality standards for certain PFAS compounds, which means that there is now a reference standard for groundwater investigation and cleanup actions, as well as guidelines for entities conducting due diligence for real estate acquisitions.

St. Louis County COVID-19 Restrictions

November 16, 2020

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As with many other places across the country, St. Louis County is experiencing a surge of COVID-19 cases, and has enacted a new round of restrictions as a result. As of November 13, 2020, there were 38,620 total confirmed cases of COVID-19 in St. Louis County, with 900 new cases reported on November 12th alone. St. Louis County’s positivity rate reached a staggering 15.1%, the highest since April of 2020.  Hospitalizations due to COVID-19 are on the sharp rise.

In response, the St. Louis County Executive, Dr. Sam Page, announced a series of new restrictions:

  • Restaurants and bars will close indoor service but not outdoor dining, curbside, delivery, and take-out service;
  • All businesses will be reduced to 25 percent of their occupancy limits (currently at 50 percent);
  • Gatherings will be reduced to a maximum of ten people (currently at 49 people);
  • Residents should only leave their homes for specified reasons

PFAS: Regulation of Firefighting Foam

PFAS: Regulation of Firefighting Foam

November 13, 2020

Authored by: Tom Lee and John Kindschuh

26 states have either passed or proposed regulations regarding per- or polyfluoroalkyl (“PFAS”) based Class B Aqueous Film-Forming foams (“AFFF”) used for firefighting.  These regulations typically involve restrictions in four general areas:

  • Discharge or use requirements – These regulations usually limit or prohibit the use of AFFF in training or testing exercises, and only allow the use of AFFF in active firefighting situations;
  • Storage or “take-back” provisions – Some states have enacted state run programs to purchase and dispose of AFFF, usually purchasing from government agencies;
  • Notification or reporting requirements – When continued use of AFFF is allowed, some states have required that businesses report specific details regarding their use; and
  • Limitations on personal protective equipment (“PPE”) – In some cases states have limited or prohibited PPE for firefighters that contains PFAS-materials.
  • While the specific regulations are listed in the chart below, BCLP wants to begin by providing an overview

    CDC Guidance Expands “Close Contact”

    October 23, 2020

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    On October 21, 2020, the Centers for Disease Control and Prevention (“CDC”) broadened the definition of “close contact” for purposes of COVID-19 contact tracing and quarantining requirements.

    Since many state and local government COVID-19 orders rely on the CDC definition of “close contact” to determine who should stay home, monitor, and be tested, the expanded definition will have repercussions across the country.  Businesses may need to re-train their employees so that they follow the correct contact tracing protocols, and additionally, businesses may need to re-write COVID-19 protocols and standard operating procedures to reflect the new definition.

    Contacts Are Now Cumulative Over a 24-Hour Period

    Originally, the CDC defined a “close contact” as a person who spent 15 consecutive minutes within six feet of an infected person starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test speciment collection) until the time the patient is

    PFAS Consumer Products Regulations

    October 19, 2020

    Categories

    PFAS Consumer Products Regulations

    October 19, 2020

    Authored by: Tom Lee and John Kindschuh

    Manufacturers, distributors, and retailers of consumer products across a broad spectrum of industries are being impacted by regulations regarding the presence of per- and polyfluorinated chemicals (“PFAS”) in their products. This area of law is rapidly developing as states create new laws, and the penalties for non-compliance can be significant. Below is an overview of enacted and proposed state laws and regulations to assist companies in beginning an investigation into whether their products are, or will be impacted.

    PFAS Background

    PFAS is a family of chemicals comprised of over 5,000 compounds. PFAS have been reported in a variety of consumer products and industrial applications including the following: children’s products, textile and apparel items, carpet cleaners, non-stick products (e.g., Teflon), stain resistant coatings, polishes, paints, cleaning products, food packaging (including pizza boxes, microwave popcorn bags, and take-out food containers), firefighting foam, certain cosmetics, and ski wax. Some studies have also shown that

    New PFAS Reporting Requirements Under TSCA

    On July 27, 2020, the Environmental Protection Agency (“EPA”) finalized a significant new use rule (“SNUR”) for PFAS substances and other compounds under the Toxic Substances Control Act (“TSCA”), which was originally proposed in 2015.  Although this is not the first SNUR for PFAS substances, it includes a new list of compounds, and may be important for your operations if those compounds are part of your business operations.

    As described below, companies that manufacture, process, distribute, or import specific long-chain perfluoroalkyl carboxylate (LCPFAC) and perfluoroalkyl sulfonate chemical substances must notify EPA at least 90 days in advance of any manufacturing (including import), processing or distribution for a significant new use.

    The final rule becomes effective on September 25, 2020.

    1. What Chemicals Are Specifically Regulated? 

    LCPFAC chemicals are defined as “the long-chain category of perfluoroalkyl carboxylate chemical substances with perfluorinated carbon chain lengths equal to or greater than seven carbons

    Back to Work: Planning for COVID-19 Impacts in the U.S. Through 2021

    September 2, 2020

    Categories

    The United States had hoped that industries (and life in general) would be “back to normal” by now after being impacted by COVID-19.  Society has endured this global pandemic for over six months, and while there have been improvements and efforts to allow certain businesses to reopen, there is no clear end in sight.

    Current Events

    Recent trends confirm that the impacts from COVID-19 will continue.  While death rates in states like New York[1] and Arizona[2] are decreasing, states like Georgia[3] and Florida[4] are seeing climbing infection rates.  Local hotspots like Danbury, Connecticut, have emerged,[5] and eight states (thus far) have had spikes in cases caused by the large Sturgis motorcycle rally in South Dakota.[6]  In response, some states and local governments are implementing controls.  For example, Illinois is taking some preventative safety measures,[7] and Oahu, Hawaii issued a two-week lockdown to address increasing infection rates.[8] 

    The important

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