The American Tort Reform Association (ATRA) filed a petition in the U.S. Court of Appeals for the D.C. Circuit challenging the Occupational Safety and Health Agency’s (OSHA’s) edits to preemption language in the Hazard Communication Standard. The federal Standard establishes minimum labeling requirements for hazardous chemicals. ATRA argues that the preemption language in effect prior to these edits in 2012 suggested that the federal Standard preempted common-law duties and liabilities, such as for failure to warn.  OSHA’s edits, according to ATRA, foreclose preemption. These changes, ATRA maintains, were made without notice or opportunity for comment, and thus are ultra vires.

CCL has now filed an amicus curiae brief for the American Association for Justice (AAJ) in this case. The brief, written by CCL’s Andre M. Mura, and filed in support of OSHA, expresses AAJ’s concern that if tort remedies against chemical manufacturers are limited through improper application of preemption principles, injured workers will be left without compensation and chemical manufacturers will not have adequate incentive to conduct a thorough hazardous material review, or to update labeling when new hazards emerge. The brief takes issue with ATRA’s preemption arguments, contending instead that the federal Standard has never been understood to preempt common-law duties and liabilities. The brief further argues, not only did OSHA not intend to preempt common-law duties in this federal Standard, it has no authority to do so, because Congress, in enacting the OSH Act, never authorized preemption of common-law duties on the scale imagined by ATRA.