On June 22, 2020, Judge William Shubb of the US District Court for the Eastern District of California entered an order prohibiting the State of California from requiring Prop 65 warnings for glyphosate, the active ingredient in the herbicide Roundup®. The decision was not based on whether glyphosate had been improperly listed under Prop 65, or whether the amount of exposure to average users was below the no significant risk level. Rather, the court concluded that the warnings were prohibited under the US Constitution’s First Amendment as compelled government speech. This decision is important, as it is the first final … Continue Reading
Earlier this year, we posted about the new wave of ADA claims that flooded the district courts in New York concerning Braille on gift cards. Four months later, a judge in the Southern District of New York issued the first ruling to shut down one plaintiff’s claims, holding that Title III does not require Braille on gift cards. See Dominguez v. Banana Republic, LLC, 2020 U.S. Dist. LEXIS 72193
The plaintiff in this case, like all of the other virtually identical complaints, alleged that he was unable to obtain a Braille gift card at a clothing retailer. The plaintiff … Continue Reading
Despite limitations on private rights of action within the California Consumer Privacy Act, many were concerned that the plaintiffs’ bar would find creative ways to skirt CCPA’s boundaries. Four months into CCPA enforcement, those concerns have been borne out. We are seeing three worrisome enforcement trends:
- Expanding the CCPA’s private right of action;
- Cloaking a CCPA claim as a California Unfair Competition law violation; and
- Retroactive application of the CCPA to conduct pre-dating January 1, 2020.
As a California appellate court once stated, and many businesses find out to their dismay, Proposition 65’s enforcement procedures make “the instigation of Proposition 65 litigation easy—and almost absurdly easy at the pleading stage and pretrial stages.” Consumer Defense Group v. Rental Housing Industry Members, 137 Cal. App. 4th 1185, 1215 (2006). A recent ruling from a federal court has found that despite Prop 65’s low bar, plaintiffs in a consumer class action lawsuit cannot bootstrap an alleged Proposition 65 violation into the basis for California consumer protection claims, at least not without first complying with Prop 65’s pre-suit … Continue Reading
In a sign of the dramatically uncertain nature of next steps, more states have issued orders to partially reopen their economies, while others have extended closure orders that were set to expire at the end of the month.
Alaska, Colorado, Georgia, Minnesota, Mississippi, Montana, Oklahoma, South Carolina, Tennessee, and Vermont all have taken the first step towards a gradual reopening. While some of these states have loosened restrictions more aggressively than others, some common themes emerge. Businesses that do reopen must try to maintain social distancing, operate at reduced capacity, and take measures to ensure the safety of their … Continue Reading
State coalitions forming
In an effort to plan for reopening their economies, several states have announced regional collaboration efforts. This includes New York and six other Northeastern states, and California, Oregon, and Washington in the west. Earlier this week, California Governor Gavin Newsom outlined a framework to reopen the western economies, predicated on six key indicators: … Continue Reading
We are continuing to track state and local restrictions, updated daily, here.
In a sign of things that may be coming nationally, Los Angeles Mayor Eric Garcetti has issued an “emergency order” requiring employees of “Essential Businesses” to wear face coverings. The order also requires customers visiting such businesses to wear face coverings, at the risk of not being served if they fail to comply. Businesses are expressly permitted to refuse entry to any customer not wearing a face covering.… Continue Reading
What seemed like a novel and crazy idea a little over a week ago has now become the majority approach to “flattening the curve” in the United States. And those states that have not yet adopted “stay at home” or “shelter in place” orders generally have comparable restrictions at the county, city, or municipal levels.
During this time of crisis, pharmaceutical and consumer product companies along with retailers are doing their best to provide the public with products to prevent and treat COVID-19. At the same time, the FTC and FDA have announced that they will be particularly vigilant in policing unscrupulous or overzealous marketers making unsubstantiated, misleading, or false health claims about their products.
In order to mitigate litigation and regulatory risk, companies manufacturing or selling healthcare products should exercise special care in scrutinizing promotional claims that may state or imply that the products prevent or treat COVID-19, influenza, or other diseases. Specifically, advertising … Continue Reading
In the wake of the coronavirus, some sellers of essential goods and services have tried to greatly increase the cost of their products to take advantage of increased demand. But sellers beware: Public officials all over the country have expressed a willingness to prosecute price gougers and companies that may facilitate sales of goods with inflated prices.