In January 2023, federal agencies released their “Fall 2022” Regulatory Agendas that provide roadmaps for upcoming and long-term regulatory actions on chemicals that could have significant implications for the regulated community. These agendas make clear that the Biden Administration continues to prioritize regulatory actions to address per- and polyfluoroalkyl substances (PFAS) across multiple agencies. And the US Environmental Protection Agency (EPA) also continues to implement numerous regulatory initiatives to assess and mitigate chemical risks under the strengthened Toxic Substances Control Act (TSCA).

Hunton’s chemical regulatory team has provided analyses of these upcoming regulatory actions:

Companies interested in the scope of environmental marketing claims and mitigating potential litigation risks should act fast as the window for comments is closing soon.

By Paul Davies, Robin M. Hulshizer, Jacqueline Y. Zhang, Danny Dvorak, Julia Hatcher, and Tony Kim

Latham & Watkins presents a blog series on the Federal Trade Commission’s Guides for the Use of Environmental Marketing Claims (Green Guides). This second post provides updates on anticipated revisions to the Green Guides to help companies mitigate litigation risk and stay abreast of regulatory changes.

Since their initial publication in 1992, the Federal Trade Commission’s (FTC) Guides for the Use of Environmental Marketing Claims (the Green Guides or the Guides) have been widely used to help drive corporate marketing, as well as litigation strategies for public and private litigants. The FTC is collecting public comments on how the Guides have operated and should operate in the marketplace moving forward and recently announced that it is extending the window for comments by 60 days to April 24, 2023. The questions posed in its December 2022 Federal Register Notice likely foreshadow the types of environmental marketing claims companies should keep a watchful eye on in the decade to come.

International Trade: U.S. Requests Second USMCA Arbitration Over Canada’s Dairy Tariff-Rate Quotas
On January 31, 2023, the Office of the U.S. Trade Representative (USTR) announced that the U.S. has requested—for the second time—that an arbitration panel adjudicate the U.S.’s claim that Canada’s  administration of its dairy tariff-rate quotas (TRQ) violate the United States-Mexico-Canada Agreement (USMCA).…

The EU’s Green Deal Industrial Plan for the Net-Zero Age

The US Inflation Reduction Act (the IRA) has raised concerns in the EU about the potential impact on international investment – particularly the possibility that such investment will be pulled into the US, rather than directed to the EU and may encourage ‘green industries’ to relocate production to the US. The EU has been working on an appropriate response that would increase the attractiveness of the EU as a green investment destination without breaching either WTO rules or its own State Aid rules.

Elephant and willow in the background.

The Dallas Zoo has been the target of several criminal acts including animal theft, animal endangerment, vandalism, and suspected intentional injury to a vulture found dead with a suspicious wound.  A suspect was just arrested and charged with animal cruelty related to the theft of two tamarin monkeys, Bella and Finn, who were fortunately found…

The European Parliament and Council are about to adopt an agreed text on a Regulation on Batteries and Waste Batteries (“Sustainable Batteries Regulation” or “SBR”) that will impose a broad range of requirements on the safety, sustainability and circularity of batteries, including batteries that are part of devices (e.g., laptop batteries), industrial batteries (e.g., large stationary storage applications) and means of transport batteries (e.g., car batteries), as well as extended producer responsibility obligations (including waste take back) on producers marketing them.  The SBR is likely to be published in the official journal of the EU within the next couple of months and will repeal and replace the existing EU Directive on Batteries and Waste Batteries.

This post outlines the specific removability and replaceability requirements that the SBR will impose on portable batteries and light means of transport (“LMT”) batteries (e.g., batteries for electric bicycles) marketed in the EU/EEA as of around September/October 2026.  The new requirements will oblige producers of appliances to introduce design changes to their appliances and the batteries they incorporate.  Moreover, clarifying the details of such requirements is likely to create much controversy and debate among the European Commission, Member States and other stakeholders within the next two years.  In effect, the SBR leaves it to the Commission to adopt guidelines interpreting the different removability and replaceability requirements. 

The post also briefly mentions the political compromise that the European Parliament and Council reached on the removability and replaceability of electrical vehicle batteries and “starting, lighting and ignition” (“SLI”) batteries, and its emphasis on ensuring that such batteries be removable and replaceable by “independent professionals” (and not just authorized dealers).

On 19 December 2022, the parties to the Convention on Biological Diversity (CBD) decided to create a new global mechanism requiring the private sector to pay into a new Global Biodiversity Trust Fund. 

The new fund is expected to generate up to 15 billion USD per year, based on contributions from companies that “use…

Four federal agencies—the Environmental Protection Agency, the Department of Transportation, the Department of Energy, and the Department of Housing and Urban Development—have released a Blueprint for Transportation Decarbonization, an ambitious plan that outlines the principles the federal government will continue to use to pursue its stated goal of economy-wide net zero emissions by 2050. This “whole of government” mobilization will profoundly affect many investment decisions, collaborations, regulatory actions and policy disputes with material impacts across many business sectors.