Article finds benefits from California law requiring disclosure of chemicals causing cancer

Claudia Polsky of Berkeley and Megan Schwarzman of Berkeley's School of Public Health have written The Hidden Success of a Conspicuous Law: Proposition 65 and the Reduction of Toxic Chemical Exposures, 47 Ecology Law Quarterly, (Forthcoming 2021). Here is the abstract:

Newcomers to California could be forgiven for thinking they have crossed into treacherous terrain. By virtue of the state’s Proposition 65 right-to-know law, store shelves and public garages everywhere announce, “WARNING: This [product/food/facility] contains chemicals known to the State of California to cause cancer [or reproductive harm].” The proliferation of consumer warnings about toxic exposures in everyday life has made Prop 65 highly controversial, as has the degree to which the law incentivizes citizens to sue businesses for failure to warn. Both features make the law recurrently vulnerable to weakening in Sacramento and preemption in Washington, D.C.

Against this backdrop—and at a time when Prop 65 faces a live preemption threat in Congress—this Article tells a new story about the law’s considerable benefits in reducing exposure to toxic chemicals. Looking beyond Prop 65’s known direct effects in prompting warnings and enforcement suits, we use original archival research and qualitative interview data to identify hidden modes by which the law reduces toxic exposures in California and nationwide.

This Article presents evidence of three previously unexplored or under-explained mechanisms of salutary Prop 65 action, in: (1) spurring direct regulation of specific toxic chemicals; (2) seeding broad supplemental chemical regulatory regimes; and (3) disseminating information about toxic chemicals in previously information-poor business-to-business and consumer marketplaces, with transformative effects on commerce. We conclude that assessing these modes of action is necessary to any fair evaluation of the merits of Prop 65.

CFPB's Consumer Finance Law Taskforce expected to issue 90-100 recommendations on January 5

by Jeff Sovern

The CFPB has posted to its website an announcement that it will hold an event on January 5 to announce the "findings, analyses, and recommendations" of its Taskforce on Federal Consumer Financial Law. Regular blog readers will recall that the Taskforce is not very diverse in a variety of ways. Earlier this month, the Taskforce came up during a very informative program titled “FinTech and Consumer Finance: Agenda for 2021” held by the Conference on Consumer Finance Law and the Program on Financial Regulation & Technology at George Mason University’s Scalia Law School. Among the speakers was Taskforce member Jean Noonan, a partner at Hudson Cook. Ms. Cook stated during her opening statement (about 46 minutes in) that the Taskforce report, which she said was not quite finished at that point, consisted of two volumes. Volume one will have 13 chapters and volume two will make between 90 and 100 recommendations. She noted that the report will run the gamut from the origins of consumer finance to cutting edge issues to intractable problems like how to give disclosures that are useful to consumers as opposed to disclosures that no one reads. The recommendations will be not only for the Bureau but also for Congress, other federal agencies, and the states. She also said that the Taskforce members intended their recommendations to be "very forward-looking" as opposed to just focusing on the short term. While discussing another topic during her opening statement, Ms. Noonan noted that in discussing that topic, she wanted to be careful not to annoy her auto finance clients. I have no reason to suppose that Ms. Noonan took a similar approach concerning the Taskforce report, but having representatives of the consumer advocacy community on the Taskforce would have gone a long way towards alleviating concerns about the report's balance.

Becher & Sibony paper: the law and policy of product obsolescence

Shmuel I. Becher of Victoria University of Wellington and Anne-Lise Sibony of UCLouvain; TILEC have written In Search of a Lasting Lightbulb Moment: The Law and Policy of Product Obsolescence. Here's the abstract:

Firms frequently employ various strategies that make products obsolete after a relatively short time or limited usage (“product obsolescence”). Early product obsolescence harms consumers, undermines market efficiency, and increases the waste the throw-away economy generates. While instances of suspected planned obsolescence have recently led to public outcry, the law and policy framework that addresses product obsolescence is partial and underdeveloped.

This Article offers a principled and holistic approach to the regulation of product obsolescence. Part I presents the different forms of product obsolescence. The typology we offer in this Part highlights some types of obsolescence that escaped legal scrutiny. Thereafter, Part II reviews the harms that product obsolescence causes to consumers, competitors, the environment, and society. In doing so, we demonstrate how product obsolescence is at odds with two key EU commitments: a high level of consumer protection, and a proclaimed shift towards more ambitious environmental objectives. Next, Part III critically assesses the existing legal framework and its (in)ability to tackle effectively the problem of product obsolescence. Finally, Part IV offers policy recommendations, aimed at better utilizing existing and novel regulatory tools to cope with product obsolescence. Concluding remarks follow.

Consumer Financial Protection Bureau issues final rule implementing the Fair Debt Collection Practices Act

The Consumer Financial Protection Bureau today issued a final rule implementing the Fair Debt Collection Practices Act. All the materials can be found here.

Is there "take-home" liability for an employer's negligence in causing transmission of Covid-19 (as there is sometimes in the asbestos context)?

That's the question addressed in Employer Liability for 'Take-Home' COVID-19 by Mark Rothstein and Julia Irzyk (forthcoming in the Journal of Law, Medicine & Ethics). Here is the abstract:

Workplace exposure to SARS-CoV-2 has been a source of morbidity and mortality from COVID-19, especially for “essential workers,” such as those employed in health care and meatpacking. Many family members of these workers also have become infected and died. If the employee’s exposure was the result of the employer’s negligence, the family member or the family member’s estate might be able to recover from the employer using the “take-home” liability theory first developed in asbestos cases. This article discusses the elements of these cases and how they relate to workers’ compensation, OSHA enforcement, and other aspects of workplace safety and health protections.

 

Judge Strikes Down D.C.'s Moratorium on Eviction Filings

Yesterday, a D.C. Superior Court Judge struck down D.C.'s local law moratorium on filing new eviction cases during the COVID-19 pandemic, writing that the eviction filing ban unconstitutionally infringed on landlords' right of access to the courts. The decision strikes down the District's ban on eviction filings, but does not overturn the city's moratorium on actual evictions. The opinion is available here.

Millions of Americans are behind on rent during the COVID-19 pandemic, and many are at risk of being evicted as federal, state, and local eviction bans expires this winter.

Groups urge the Consumer Financial Protection Bureau to strengthen protections against credit discrimination

48 consumer, civil rights, and public interest groups just submitted detailed comments to the Consumer Financial Protection Bureau’s on how to improve enforcement of the prohibitions against discrimination in the extension of consumer credit under the Equal Credit Opportunity Act and its regulations. Read about it here.

SCOTUS takes FCRA class action case

The issue as framed by the petitioner, TransUnion, is whether "either Article III or Federal Rule of Civil Procedure 23 permits a damages class action when the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered." More at SCOTUSblog.

Op-Ed: The COVID liability charade: Mitch McConnell’s demand is built on dishonest claims

Here. Excerpt:

One reason there may have been so few consumer lawsuits is that it is difficult to prove exactly where and how a person got COVID, especially during a pandemic. And even in the rare case that a consumer can summon the needed proof, he or she would still have to show that the business did something unreasonable. So by leaving the rules as they are, we can still give businesses an incentive to take reasonable steps to protect their customers and employees while achieving the goal of having few people sue businesses. In other words, existing law gives both sides what they want.

 

Article on section 230 immunity

The immunity provided to internet platforms by section 230 of Communications Decency Act is a hot topic these days. Gregory Dickenson has written Rebooting Internet Immunity. Here is the abstract:

We do everything online. We shop, travel, invest, socialize, and even hold garage sales. Even though we may not care whether a company operates online or in the physical world, however, the question has dramatic consequences for the companies themselves. Online and offline entities are governed by different rules. Under Section 230 of the Communications Decency Act, online entities—but not physical-world entities—are immune from lawsuits related to content authored by their users or customers. As a result, online entities have been able to avoid claims for harms caused by their negligence and defective product designs simply because they operate online.

The reason for the disparate treatment is the internet’s dramatic evolution over the last two decades. The internet of 1996 served as an information repository and communications channel and was well governed by Section 230, which treats internet entities as another form of mass media: Because Facebook, Twitter and other online companies could not possibly review the mass of content that flows through their systems, Section 230 immunizes them from claims related to user content. But content distribution is not the internet’s only function, and it is even less so now than it was in 1996. The internet also operates as a platform for the delivery of real-world goods and services and requires a correspondingly diverse immunity doctrine. This Article proposes refining online immunity by limiting it to claims that threaten to impose a content-moderation burden on internet defendants. Where a claim is preventable other than by content moderation—for example, by redesigning an app or website—a plaintiff could freely seek relief, just as in the physical world. This approach empowers courts to identify culpable actors in the virtual world and treat like conduct alike wherever it occurs.