January 2, 2023In the News

Benson Quoted in Law360's "Product Liability Legislation & Regulation To Watch In 2023"


The U.S. Consumer Product Safety Commission is expected to become more active next year, with the possibility of criminal penalties for product safety violations. And more groups of chemicals known as '"forever" chemicals may fall under federal regulations for drinking water.

Here's Law360's list of what to watch next year in product liability regulation and legislation:

CPSC Gathers Steam

The CPSC is expected to become even more aggressive on enforcement in 2023, according to its recently approved operating plan for the coming year.

For example, the CPSC will continue to lead swift and strong investigations into product safety infractions, but it will also evaluate all cases for potential referral to the U.S. Department of Justice for the criminal prosecution of corporate wrongdoers.

"I can't recall that being expressly stated before. And so that's in many respects — that's a potential game-changer," Paul Benson of Michael Best & Friedrich LLP said. "People in the consumer products space are going to really stand up and take notes."

Among the agency's priorities for 2023 are potential safety issues with Internet of Things-connected products, electric scooters, rechargeable batteries and off-road vehicles, according to the plan.

The agency is also seeking an additional $56.45 million in funding and 133 more full-time employees; some of those resources would be directed to focusing on product safety risks ensuing from the COVID-19 pandemic that affect vulnerable populations, according to the plan.

Additionally, the CPSC will work on voluntary standards for indoor air quality, including for per- and polyfluoroalkyl substances, or PFAS, which are called "forever" chemicals because of their longevity in the human body and the environment.

And under the recently passed Reese's Law, which requires the CPSC to enact standards to prevent children from accidentally swallowing small "button" batteries, the agency will be preparing rulemaking to set requirements for both the batteries and devices that use them.

"If it follows through on this operating plan, and I have no reason to think they won't, the CPSC will probably be the most active it has ever been in 2023," Benson said.

More PFAS Could Be Included Under Drinking Water Regulations

In November, the U.S. Environmental Protection Agency released a lengthy list of chemicals that for the first time could be regulated, which includes the three separate groups of PFAS.

The chemicals on the agency's list are either known or anticipated to be present in public water systems, and being on the Drinking Water Contaminant Candidate List is the first step to their becoming possibly regulated under the Safe Drinking Water Act.

"As EPA takes action to protect public health and the environment from PFAS, including proposing the first nationwide drinking water standards later this year, today's final [contaminant list] looks further forward to consider additional protective steps for these forever chemicals," EPA Assistant Administrator for Water Radhika Fox said in a statement at the time.

The newly listed PFAS groups contain at least one of three complicated chemical structures. Other PFAS, perfluorooctanoic acid, or PFOA, and perfluorooctanesulfonic acid, or PFOS, are already in the regulatory process.

The list also includes other chemicals such as bisphenol A, cyanotoxins, unnamed "disinfection byproducts," lithium, methyl tert-butyl ether and tungsten.

PFAS chemicals are found in a wide range of products from firefighting foam to food packaging and have been shown to lead to reproductive, liver and kidney problems and maybe cancer.

Litigation over the chemicals has also grown rapidly in recent years as the EPA continues to examine the issue. The suits are generally brought by water districts and localities over groundwater contamination and for exposure to PFAS in firefighting foam — and there are no signs they will abate anytime soon.

"I fully expect that 30 to 35 years from now, we're still going to see PFAS litigation," Benson said. "The trajectory of it strikes me as being very similar to what I recall in the late '80s, early '90s, of the trajectory that we saw in both tobacco and asbestos litigation."

To read the entire Law360 article, please click here.

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