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COVID-19: Four Steps to Help Protect Supply Chains in Face of Shelter-in-Place Orders

Effective March 17, 2020, San Francisco and six other Bay Area counties passed “Shelter in Place” ordinances preventing workers not engaged in providing Essential Activities, working at Essential Businesses or providing Essential Government Services from leaving their homes to go to work. Such laws are now being considered throughout the country. This alert provides actionable steps companies can take to ensure that Shelter in Place laws in their jurisdictions do not inadvertently block employees from getting to work at their Essential Businesses.

First, be proactive, contact your state and local government officials to make sure they understand why your business is essential. If your product or service is truly essential, no government official is going to want to be blamed for inadvertently causing a shortage of that product. Note the Bay Area Orders define Essential Businesses to include “Businesses that supply other essential businesses with the support or supplies necessary to operate.” If your business falls into that category, you may want to have that business explicitly enumerated as an Essential Business rather than rely on a judgment call that this catch all provision applies. To proceed, identify to make sure they know. BCLP can help (a) identify the appropriate officials at the State and local level and reach out to them, (b) develop the message to be delivered as to why your employees should not be required to Shelter In Place and (c) draft language to clarify why your business and its supply chain should be exempt from the

Assessing Slavery and Human Trafficking Risks

The Modern Slavery Act (“MSA”) was introduced in the United Kingdom in October 2015 introducing criminal offences of slavery, servitude, forced or compulsory labour and human trafficking. However, its most profound impact has been to drive a change in global business behaviour by introducing, pursuant to s54, a disclosure and transparency reporting approach. This requires a commercial organisation supplying goods or services (carrying on a business, of part of a business, in the UK with a turnover of £36M) to produce an annual statement on steps taken to combat slavery and human trafficking not only to a business’ direct operations but also their supply chains.

Following the MSA a legislative trend utilising due diligence and disclosure obligations to further responsible business conduct has developed and been reinforced by developing case law and test cases seeking to hold businesses accountable for social/human rights related issues. The launch of global Principles in 2018 for governments to use as a framework for tackling modern slavery in global supply chains is also expected to prompt legislation in further jurisdictions.

Mapping external and intra-group supply chains can be a complex and far-reaching endeavour. However, demonstrating responsible supply management is critical from a social risk governance perspective and increasingly may lead potential legal liability if it is not managed. Ensuring responsible business conduct is also a growing expectation of business’ key stakeholders, and it is reflected in company policies and practice, commercial contracts, tender prerequisites of private organisations and public bodies, customs practices, sectoral standards and guidance, exchange requirements and public benchmarking initiatives and government policy.

Making the Case for the Long-Term Benefits of Corporate Sustainability Pledges

During Steve Poplawski’s June presentation at the Chemical Industry Council of Illinois’ Hot Topics conference on the opportunities and challenges presented by current efforts to make the life cycle of plastics more sustainable, one of the challenges raised by the audience was whether corporate sustainability pledges to improve packaging were getting ahead of consumer acceptance. An article published by WasteDive focusing on McDonald’s green pilot restaurants in Canada, suggests there is a business case for risking being ahead of consumer acceptance on this issue as a way of being ahead of an inevitable curve promoted by efforts like Yelp’s piloting of sustainability scoring at restaurants.

In speaking to over 200 EHS professionals in Kansas City in April, Steve made a similar argument on doubling down on sustainability.  In that presentation, Steve made the case that it was to every company’s advantage to develop and own their individual corporate sustainability narratives because, if a company doesn’t develop transparent reliable information on the sustainability of their supply chain and operations, third parties will fill the information vacuum through social media and other means, leaving their companies defensively responding to what could be inaccurate but still damaging information.

Demonstrating that you are better at managing plastic or, even more powerfully, enabling your customers to better manage plastic throughout its life-cycle, are particularly effective ways, given the current challenges presented by single use plastic, to show your stakeholders your company’s commitment to long term environmental sustainability.

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EPA Announces Action Plan for Two PFAS, Including in Consumer Products

PFAS are currently the subject of significant regulatory action, research, litigation, and public debate based on recent reports which claim that two PFAS, Perfluorooctanoic Acid (“PFOA”) and Perfluorooctane Sulfonate (“PFOS”), that were formerly used in a variety of industries may be carcinogens or reproductive toxicants. Several states have begun investigating and regulating the levels of PFAS in drinking water, and in some cases, for example Minnesota and New York, have sued manufacturers of the chemicals themselves or products that historically contained PFOA and PFOS, bringing claims for the recovery of natural resource damages, trespass, nuisance, and negligence.

EPA has historically addressed these chemicals through a stewardship program under which the companies that manufactured PFOA and PFOS agreed to voluntarily stop their production, and companies that used PFOA and PFOS agreed to stop importing them. Now, however, Acting Administrator Wheeler is under increasing bipartisan pressure to take federal regulatory action.

Into the teeth of this debate, EPA unveiled its much-anticipated PFAS Action Plan (the Plan) on February 14, 2019. The full Action Plan can be found here, and a helpful one page summary is also available here. The Action Plan does not actually make any determinations, or propose or set any new regulatory standards for this wide group of chemicals. Instead, it provides a comprehensive preview of the next several years’ worth of federal investigation into, and regulation of these diverse chemicals which are used in a variety of industries to make products including water resistant clothing and athletic equipment, non-stick cookware,

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