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EPA Proposes Rule to Permit Early Labeling of Composite Wood Products, Fix "Born-On Date" Problem

Earlier this month the EPA proposed a direct final rule that would amend its Formaldehyde Emission Standards for Composite Wood Products to permit manufacturers to voluntarily label products subject to the standards as Toxic Substances Control Act (“TSCA”) Title VI compliant “as soon as compliance can be achieved.” 

This long-awaiting amendment fixes the “born-on date” problem in the original rule, which prohibited products from being labeled prior to the rule’s effective date of December 12, 2017. (As mentioned in a prior alert, EPA has undertaken a formal rulemaking process to extend the rule’s effective date to March 22, 2018.)  Because TSCA defines the date of manufacturer as the date of import for imported products, the “born-on date” problem was particularly concerning for importers and oversees manufacturers whose products could be found out of compliance if they arrived in port unlabeled on the effective date, even though they were made and shipped prior to the effective date.

If no negative comments are received, then the labeling relief in the direct final rule will take effect without further action tomorrow, July 26, 2017.  In case any negative comments are received, EPA has also published an identical proposed rule under the formal rulemaking process, which will take longer to implement.  So far, one comment has been received in support of the proposed rule and no comments have been received on the direct final rule.

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About this Author

Michael J. Sullivan, Womble Carlyle, risk management attorney, cost control lawyer
Managing Partner

Michael Sullivan is Managing Partner in the Atlanta office of Womble Carlyle, a full-service business law firm with more than 530 lawyers in 14 offices throughout the Southeast and Mid-Atlantic United States and in Silicon Valley. Michael is a mass tort and complex commercial litigation attorney with over 30 years of experience representing clients in bet-the-company litigation.  His practice today includes acting as trusted advisor to senior level executives on risk management, cost control and litigation management issues.  In addition to his leadership role in the...

Christa Burger, Womble Carlyle Law Firm, Complex Litigation Attorney

Christa is a young litigator with a broad range of experience defending complex mass tort and business matters, including class actions, contracts, negligence, and products liability claims.  Her practice also involves counseling corporate clients on a variety of marketing and regulatory issues, including product labeling, such as compliance with California’s Proposition 65, public relations, and responding to inquiries from state and federal agencies. 

With respect to litigation, Christa has experience in all stages of case preparation and trial, including offensive and defensive discovery; briefing and motions practice; and evaluating, developing, and preparing fact and expert witnesses for deposition and trial.  Christa has been a member of several trial teams, including Campbell v. R.J. Reynolds (2013) and Haldeman v. R.J. Reynolds (2013), which resulted in judgment for R. J. Reynolds Tobacco Company.  She also has experience with alternative dispute resolution, including mediation and the national arbitration regarding enforcement of the escrow statute against non-participating manufacturers under the Master Settlement Agreement.