Safe Assumption About EPA’S Safer Choice Labels
The U.S. Environmental Protection Agency (EPA) Safer Choice labeling program “helps consumers, businesses, and purchasers find products that perform and contain ingredients that are safer for human health and the environment.” The EPA offers lists of Safer Choice-Certified Products for different industries including all-purpose cleaners, car care products, dish soaps, floor cleaners, laundry products, and tub and tile cleaners.
The Safer Choice Standard includes criteria for chemical ingredients and requirements for performance, packaging, pH, and VOCs (i.e., volatile organic compounds. Manufacturers, importers, and distributors of products that do not contain the Safer Choice label should be prepared to defend against product liability suits claiming they failed to meet even the most minimum standards (i.e., governmental). Furthermore, as industry competitors more frequently obtain the Safer Choice label, those that do not will be subject to claims that they failed to meet industry standards.
In a world where the general public, and thus, more jurors will be looking at the safety and efficacy of all products (see current discussions in media surrounding vaccines), developing a scientific defense will be paramount. That will include a dissection of the scientific studies used by governmental agencies and industry to determine “safe” levels and for whom they are safe. Using the current reporting on the Phase-III clinical trials involving multiple COVID-19 vaccines as an example, the safety and efficacy for one age group may not establish the safety and efficacy for another. Similarly, if a product is designed to be used by a group of people that the underlying studies included to gain the Safer Choice label did not include, the “failure to meet the minimum standards” argument should not apply. There are other scientific methods to distinguish products from the studies the plaintiffs’ bar will use against them, but the defense will need to undermine the reliability, including applicability, of the studies themselves to prevail via motion or verdict.