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Crude Oil Safety Mandates Signed into Law

A transportation law signed by President Obama earlier this month includes new mandates for freight trains transporting crude oil through the United States. The law requires that tank cars used for transporting crude oil be replaced by March 1, 2018, phasing out older DOT 111 tank cars for shipment of flammable liquids, including most Bakken crude oil, according to the U.S. Department of Transportation.

The new tank cars will have thicker steel shells, insulating materials, full-size metal shields at each end and improved outlet valves underneath the car.

DOT tank car

The DOT said that the Notice of Proposed Rulemaking (NPRM) also outlines a classification and testing program for mined gases and liquids and new operational requirements for high-hazard flammable trains (HHFT) that include braking controls and speed restrictions.

A rail disaster in Lac-Mégantic, Canada, on July 26, 2013, that killed 42 people brought a heightened focus on the dangers of transporting highly flammable Bakken crude oil by train.

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The Journal News reports that the new law requires freight railroads to provide real-time data on flammable liquids shipments to state emergency response commissions (SERCs) to be shared with local first responders. The law codifies what had been a regulatory emergency order requiring trains containing one million gallons of Bakken crude oil to notify SERCs or other appropriate state-delegated entities about the operation of these trains through their states.

For the first time, the rail safety section of the new transportation law also allows states and localities to obtain inspection reports on privately owned rail bridges filed with the Federal Railroad Administration by freight railroads.

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Localities will be eligible for 80% federal funding to finance safety improvements at dangerous railroad crossings.

According to the DOT, the rule:

  • Requires an enhanced tank car standard and an aggressive, risk-based retrofitting schedule for older tank cars carrying crude oil and ethanol.
  • Requires a new braking standard for certain trains that will offer a higher level of safety by potentially reducing the severity of an accident.
  • Designates new operational protocols for trains transporting large volumes of flammable liquids, such as routing requirements, speed restrictions, and information for local government agencies.
  • Provides new sampling and testing requirements to improve classification of energy products placed into transport.

Chipotle Food-Borne Illness Outbreaks Highlight Supply Chain, Reputation Risks

For the past month, Chipotle Mexican Grill has been mired in a food safety crisis. An e. coli outbreak linked to Chipotle has sickened at least 52 people in nine states. In a seemingly unrelated outbreak, 120 people in Boston – most of them students at Boston College – also fell ill after contracting norovirus from eating at the quick-service chain.

While food safety and product recall concerns are always a major liability for industry players, the spate of infections poses even more of a threat to Chipotle as the company has built its reputation on the foundation of a healthy, responsible supply chain, boasting its use of fresh produce, meat raised without antibiotics, and a network of hundreds of small, independent farmers. As Bloomberg put it, the company’s biggest strength is suddenly its biggest weakness. Given the chain’s 1,900 locations and the rate at which it has expanded (about 200 new locations every year), its supply chain is already under significant pressure. When an audit found unacceptable practices earlier this year, the company suspended a primary pork supplier, pulling carnitas from the menu at about a third of its restaurants nationwide. The company pointed to its decisive action as proof of its commitment to sustainable agriculture, but many analysts said it highlighted the company’s inherent vulnerability to supply chain issues.

“You can never eliminate all risk, regardless of the size of suppliers, but the program we have put in place since the incident began is designed to eliminate or mitigate risk to a level near zero,” Chris Arnold, the company’s director of communications, told Bloomberg.

Now, as the number and geographical spread of E. coli cases grows, the company has closed dozens of restaurants for what it promises will be thorough investigation and cleaning. Steve Ells, the company’s co-chief executive, went on the “Today” show to publicly apologize and vow that reforms currently being put into place would turn Chipotle into a leader in food safety. “The procedures we’re putting in place today are so above industry norms that we are going to be the safest place to eat,” he said.

But consumers are not so sure, leading sales to fall 16% in November, and its stock price has dropped almost 30% since the outbreak was first detected, the Washington Post reports. Analysts and the company itself have said they expect the outbreak to continue to cause a drop in sales. Take a look at how the ongoing crisis has impacted the company’s stock:

chipotle stock e coli

These doubts may have long-term impacts on Chipotle and may even extend to other food industry stakeholders.

“Fast-food companies are 100 percent reliant on their food supply to send them something that is pathogen-free, but the supply chain is still extremely reluctant to test every [food] product it provides,” food safety consultant Mansour Samadpour told the Washington Post. “Many companies are starting to do it, but the reluctance is real and it’s problematic — and that’s getting in the way of food safety.”

“I worry that [consumers] look at food safety from the organic, non-GMO, sustainability, animal welfare standpoint,” Bill Marler, a lawyer specializing in food-borne illness, told the Post. “And a lot of people in that space, in that agricultural movement, tend to believe that because they do those things their food is automatically safer than food that’s served at McDonald’s or Jack in the Box or Walmart. But that’s just not the case.”

For more about food safety crises and product recall, check out the following articles from Risk Management:
Feeding an Appetite for Trust, A Q&A with Center for Food Integrity CEO Charlie Arnot
Food Safety Updates Stalled by Funding
Maximizing Coverage for a Product Recall

Balancing Risk and Compassion: Life Sciences Companies Face New Risks from Expanded Access

Pharmaceutical companies operate with a singular objective: bring drugs to market. This is how they profit, how they ensure that their products help the most people, and how they maintain the resources to continue innovating.

The lifecycle of drug development can be complex and onerous, despite improvements to the regulatory approval process over the past several years. Now, a trend sweeping the industry is forcing many pharmaceutical companies to decide under which circumstances they’re willing to divert resources from their mission of helping the masses.

Expanded Access, or “Compassionate Use,” refers to the use of an experimental drug not yet approved by the FDA to treat a critically ill patient outside of a clinical trial. The FDA received more than 1,800 requests for access to experimental drugs last year and, over the last five years, it has approved 99% of these requests.

But ultimately, once requests are approved by the FDA, it’s up to manufacturers to provide the drug to these patients, many of whom are children, and many of whom have just months left to live.

Companies are then faced with a choice: to provide an unapproved drug to individual patients, which can delay the process of making the drug widely available, or to deny the request and risk backlash from the public, who see only a dying patient and the pharmaceutical company that could save them. In several cases, the latter has fueled social media campaigns demonizing companies for withholding potentially life-saving medicines.

How a company handles expanded access requests can affect its reputation and financial stability. Pharmaceutical executives often operate under a microscope, where patient outcomes are the key to keeping investors on board. As expanded access patients often do not qualify for clinical trials, they may be higher-risk candidates, so reporting their results to the FDA could potentially prolong approvals and market availability. On the other hand, a company that denies an expanded access request can face significant reputational damage and even legal action if investors believe that management decisions hindered the company’s progress.

Small and mid-size life science firms in particular may fear that they don’t have the resources to navigate expanded access cases. But requests for experimental drugs are on the rise: the FDA saw a 92% year-over-year increase in requests in 2014. Companies need to prepare their approach and policies before they find themselves in the throes of a difficult decision with pressures mounting from both sides. Here are four ways they can set themselves up to make informed decisions about balancing risk with compassion:

Monitor the Regulatory Environment

Over the last year, the FDA has been working to simplify the process for physicians requesting access to experimental drugs on behalf of patients. In February 2015, the agency streamlined the application form, which now requires physicians to submit just eight types of information, as compared with 26 types in the previous form.

The FDA has also been working with life sciences companies to find alternative solutions to expanded access when needed, such as designing expedited open-label trials for these patients.

Additionally, as of August 2015, 24 states have introduced right-to-try bills, which allow physicians to request experimental drugs without going through the FDA’s application process.

With both federal and state governing bodies paving the way for easier access to experimental drugs, the decision to provide these drugs falls squarely on the shoulders of corporate leadership at pharmaceutical companies. These firms also ought to keep in mind the need to prioritize building and maintaining relationships with the FDA, which can be key in developing a creative solution.

Update Your Crisis Management Plan

Crisis management plans are sometimes written in broad strokes. In preparing for expanded access cases, risk managers need to bring together leadership from various departments—senior management, investor relations, finance, human resources, etc.—to weigh in on the specific risks associated with experimental drugs. Many firms will seek outside counsel to guide the process.

At a basic level, a crisis plan should map out vulnerabilities across all risk areas. For example, companies need to consider the process for securing their facilities, fielding press inquiries, addressing social media backlash, managing investor concerns and navigating potential lawsuits.

Most importantly, companies need to develop the principles that will guide decisions in crisis situations. Rather than scrambling for direction in the heat of public scrutiny, companies should establish a clearly-stated policy and set of guidelines for participation in expanded access programs. This will serve as the foundation of a response if an issue arises. Management must then be prepared to defend that position to all stakeholders, including employees, investors, patients, physicians and potentially press.

Evaluate and Re-evaluate Your Insurance Policies

Organizations need to consider which financial risks they can transfer to their insurance policies. Not everything will be insurable, but a strong policy can provide protection if an expanded access case threatens a company’s financial stability.

This starts with a comprehensive review of a company’s insurance portfolio with the issue of expanded access in mind. Oftentimes, risk managers revisit their policy language through the lens of a specific issue and realize that their expectations for coverage don’t accommodate current events. This can be the case with expanded access.

When reviewing their policies, companies need to understand the intent of the language relevant to expanded access and work with their broker to make sure the coverages are as granular as possible.

Lead the Way

This year, Johnson & Johnson created a Compassionate-Use Advisory Committee composed of doctors, bioethicists and consumer advocates to evaluate expanded access requests and make recommendations to the company’s clinicians. While many have hailed this as a creative solution for maintaining ethical standards, smaller companies with fewer resources cannot as easily take such an approach. These firms have an opportunity to set the standard for managing expanded access cases by developing thoughtful policies, collaborating with regulators and academics and, of course, addressing risks to business from the onset.

U.S. P&C Rates Continue to Decline

As 2015 draws to a close, U.S. property and casualty insurers continue to adjust rates downward. The composite rate index for all P/C business placed in the UnitedM Scout-1 States was down 3% in November 2015, compared to down 2% in October, according to MarketScout.

“There are very few signs of rate increases. The only coverage with seemingly steady rate increases is cyber liability,” Richard Kerr, CEO of MarketScout said in a statement. “Underwriters don’t have a lot of data to use for pricing cyber so we expect pricing to be inconsistent in the near term.”

By coverage classification, property, business interruption, business owners’, inland marine, auto, umbrella, and crime coverages all adjusted down an additional 1% from the prior month. General liability and workers compensation were down an additional 2% compared to last month.

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By account size, jumbo (more than million) and large (0,001- million) accounts were the most competitively priced and were down an additional 2% from the preceding month.

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Medium ($25,001-$250,000) and small (up to $25,000) accounts were down an additional 1% from October, MarketScout said.

Manufacturing and service industries were down an additional 2% from the prior month. Habitational, contracting, public entity and energy were down 1% from last month. Transportation was unchanged.

Summary of November 2015 rates by coverage, account size and industry class:

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Annualized year-on-year rate adjustments from November 2014 to November 2015:

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