Preemption

News & Analysis as of

President signs bipartisan law revamping Toxic Substances Control Act

President Barack Obama has signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act (available here) - the first significant set of amendments to the core regulatory program under Title I of the Toxic...more

The federal-state energy regulatory divide: The new order after Learjet, EPSA and Hughes

In three recent decisions (the Three Decisions), the US Supreme Court (the Court) drew a sharp dividing line between the authority of the Federal Energy Regulatory Commission (FERC or Commission) and that of the states to...more

Financial Services Weekly News - June 2016 #5

Regulatory Developments - FSOC Rescinds GE Capital's SIFI Designation - On June 29, the Financial Stability Oversight Council (FSOC) announced that it had voted unanimously to “rescind its determination that...more

The Difference Between Manufacturing and Design Defects

Some plaintiffs seem to think that if they allege any problems about anything in the manufacturing process of a prescription medical product, then it falls under the rubric of “manufacturing defect.” They’re wrong, of course....more

Recent Complaints Highlight Continued Friction between State Policy Goals and Federally Regulated Wholesale Power Markets

On June 24, 2016, two complaints were filed with the Federal Energy Regulatory Commission (“Commission or FERC”) that highlight the continued tension between state policy initiatives and the mandatory centralized capacity...more

New Toxic Substances Law Will Have Far-Reaching Impacts on American Business

A lot has changed since the United States celebrated its bicentennial in 1976. From technological breakthroughs to medical treatment of various diseases, the American people have witnessed and experienced significant changes...more

TSCA Reform Presents Solutions and Questions for Industry

On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the first amendments to the Toxic Substances Control Act (TSCA) since its passage in 1976. The amendments...more

Supreme Court Denies Certiorari Petition in Madden Case

Although it is reasonably unlikely that other circuit courts will follow the Second Circuit decision, it is uncertain whether application of the Madden case in the Second Circuit will be confined to its facts....more

Leveraging Government's Brief, Midland Pushes for Cert

Capitalizing on the government's position in its brief to the U.S. Supreme Court, Midland Funding filed a supplemental brief in support of its quest to have the justices overturn a Second Circuit Court of Appeals opinion...more

Supreme Court Denies Certiorari To Review Second Circuit’s Decision in Madden v. Midland Funding, LLC

The U.S. Supreme Court has denied certiorari to review the decision of the U.S. Court of Appeals for the Second Circuit in Madden v. Midland Funding, LLC. As previously reported, Madden involved a putative class action...more

Nationwide GE Labeling Leaps Forward

Four years after California’s genetically engineered (GE) food labeling initiative was defeated, but just days before Vermont’s GE law is to go into effect, the U.S. Senate is poised to impose such labeling nationwide. The...more

SEC Prevails in Regulation A+ Litigation

Regulation A+, which became effective on March 25, 2015, permits the offering of up to $50,000,000 in securities in any twelve-month period, subject to the certain requirements (a “Tier 2 Offering”). Tier 2 Offerings are not...more

Be Prepared for the New World of Chemical (and Product) Management and Regulation

The nation’s primary law for managing chemicals, from manufacture to their use in a wide array of consumer and commercial products, is set for a fundamental transformation now that Congress has passed, and President Obama...more

SCOTUS Declines Hearing Madden: Are Industry Repercussions Limited?

In a disappointing move, the Supreme Court today denied the petition by Midland Funding to hear the case Madden v. Midland Funding. But could the inaction by the Supreme Court be much ado about nothing?...more

Toxic Substances Control Act: Past, Present and Future

The Toxic Substances Control Act (TSCA) was enacted on October 11, 1976 to regulate certain chemical substances and mixtures being used in interstate commerce. 15 U.S.C. § 2601, et seq. TSCA delegated enforcement authority to...more

Industry, NGOs, Republicans, and Democrats Bond over Chemistry

The Frank R. Lautenberg Chemical Safety for the 21st Century Act was passed in the House by an overwhelming vote of 403 – 12. After passing the Senate, it was signed into law by President Obama on June 22, 2016. The...more

Proposed Senate Biotech Deal Would Preempt Vermont GMO Law: Will It Pass?

On June 23, 2016, Senate lawmakers agreed to a bipartisan proposal to require the first nationwide, mandatory disclosures for food containing genetically modified organisms (GMOs), or “bioengineered” ingredients, as they...more

Senators Reach Compromise on GMO Labeling Bill

On June 23, 2016, U.S. Senate Agriculture Committee Chairman Pat Roberts, R-Kan., and Ranking Member Debbie Stabenow, D-Mich., announced a bipartisan compromise bill regarding labeling of bioengineered foods, sometimes...more

Does Federal Bankruptcy Law Preempt State Law Fraudulent Transfer Claims Assigned to a Bankruptcy Estate Representative?

The U.S. Bankruptcy Court for the District of Delaware recently issued an opinion that addresses, among other issues, the question of whether section 546(e) of the Bankruptcy Code preempts certain fraudulent transfer...more

The Toxic Substances Control Act Overhaul: What You Need to Know

On June 22, 2016, President Obama signed the “Frank R. Lautenberg Chemical Safety for the 21st Century Act” into law, making comprehensive changes to the Toxic Substances Control Act (TSCA). This step comes after years of...more

HIPAA Does Not Preempt Statutory Right to Ex Parte Interviews of Treating Physicians in Tennessee Health Care Liability Actions

A key tool for the defense of medical providers in Tennessee facing malpractice liability has been held to be not preempted by federal law. On June 3, 2016, the Tennessee Court of Appeals, in Caldwell v. Baptist Memorial...more

Toxic Substances Control Act Overhauled Chemical Risk Regulation in the U.S. Joins the 21st Century

On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act (the Act). Passed with significant bipartisan support, the Act is the first major update to a federal...more

President Signs TSCA Legislation Modernizing Nation’s Chemical Safety Program

On June 22, 2016, the President signed the “Frank R. Lautenberg Chemical Safety for the 21st Century Act,” a landmark law containing major reforms to the Toxic Substances Control Act (“TSCA”). As noted in Balch &...more

Implications of New Lautenberg Act’s Sweeping Changes to Toxic Substances Control Act

President Obama signed HR 2576, the Frank Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), into law on June 22, 2016. The Lautenberg Act makes significant changes to the Toxic Substances Control Act...more

New Amendments To TSCA Invigorate Chemical Regulatory Regime And Empower EPA

On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act (the Act) which amends the core provisions of the Toxic Substances Control Act (TSCA), an environmental law...more

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