FDA presses pause on CBD enforcement guidance—for now

By Mark Faccenda (US), Will Troutman (US) and Katie Fragoso (US) on January 31, 2021 Posted in General

In the dawn of the new administration, the U.S. Food and Drug Administration (FDA) withdrew its “Cannabidiol Enforcement Policy,” a document that stakeholders had hoped would deliver long-overdue guidance on cannabidiol (CBD) regulations. The White House had completed its review of the document back in July, although no subsequent action followed, and the contents were never released to the public. The document was not specifically targeted—a Biden administration memo instructed the federal agencies to withdraw all pending rules—and so we cannot draw any conclusions at this point on whether the freeze represents a change in approach on CBD regulation from … Continue Reading

California flammability standard for upholstered furniture goes national

By Will Troutman (US) and Eva Yang (US) on January 15, 2021 Posted in Recent legislation and regulations

On December 21, 2020, Congress passed The Safer Occupancy Furniture Flammability Act (SOFFA), which was presented alongside other legislation in a $1.4 trillion COVID relief omnibus bill. SOFFA requires the adoption of California’s TB 117-2013 as a federal flammability standard for residential upholstered furniture. TB 117-2013 outlines performance standards and methods for testing the smolder resistance of cover fabrics along with the barrier, filling, and decking materials used in upholstered residential furniture.

Background

Historically, there has been disagreement in the industry about whether upholstered furniture should be required to withstand an open flame or just be smolder resistant. Prior to … Continue Reading

California moves to restrict the use of short-form Prop 65 warnings

By Jeff Margulies (US), Will Troutman (US) and Lauren Shoor (US) on January 11, 2021 Posted in California Proposition 65, Recent legislation and regulations

On January 8, 2021, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice of proposed rulemaking significantly limiting the use of the short-form warning as a safe harbor. The proposed regulation makes the following changes:

Limiting the use of the short-form warning to products with 5 square inches or less of label space for consumer information
Requiring at least one chemical to be identified in the warning
Eliminating short-form warnings in internet and catalogs
Clarifying the use of short-form warnings for food, including the use of an offset boxed warning

Background

When OEHHA, the California agency that … Continue Reading

Stream-of-commerce considerations for consumer product patent infringement claims

By Tamsen Barrett (US), Thomas Orsak (US) and Sean Patrick McGinley (US) on December 15, 2020 Posted in General

An initial question a consumer product manufacturer or retailer should consider when sued for patent infringement is: does the court have personal jurisdiction?

Determining whether a court has personal jurisdiction to hear a case can help avoid liability and dismiss a case early in the proceedings. This issue can present a difficult question for litigation strategy if the defendant only placed the accused product into the stream-of-commerce.

For example, if a manufacturer in Northern California supplies a widget to a distributor in Massachusetts, can a patent owner sue the manufacturer in a court in Eastern Texas because the distibutor sold … Continue Reading

Coffee roasters and retailers defeat Proposition 65 lawsuit

By Jeff Margulies (US) and Lauren Shoor (US) on August 26, 2020 Posted in California Proposition 65

We previously wrote about a regulation issued last year by the California Office of Environmental Health Hazard Assessment (OEHHA) exempting chemicals in coffee from Proposition 65’s warning requirement. The question then was what effect the new regulation would have on the long-pending industry-wide enforcement action brought by the Council for Education and Research on Toxics (CERT) over acrylamide in coffee. Well, we now have an answer.

The litigation, against approximately 75 roasters and retailers, was originally filed in 2011. Following two phases of trial on liability in 2014 and 2017, Los Angeles Superior Court Judge Elihu Berle had found that … Continue Reading

Breach of contracts and a social media gaming celebrity

By Will Troutman (US) and Eva Yang (US) on August 4, 2020 Posted in General, Recent consumer products case law

As more and more consumer markets brands turn to influencers and social media stars to promote their products, novel legal issues are bound to arise! Sue Ross and Eva Yang provide their analysis on a case recently litigated in the Southern District of New York that includes claims under California’s Talent Agency Act and the California Business and Professions code. Check out their post, “Social media gaming celebrity and breach of contracts,” on the Social Media Law Bulletin.… Continue Reading

Federal court says Prop 65 warnings for glyphosate violate the First Amendment

By Jeff Margulies (US) on June 29, 2020 Posted in California Proposition 65, Recent consumer products case law

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

Judge issues first ruling dismissing lawsuit for Braille on gift cards

By Jeff Margulies (US) and Eva Yang (US) on June 16, 2020 Posted in General

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 (see Braille on gift cards: ADA accessibility issue or novel shakedown?) . 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 … Continue Reading

CCPA enforcement trends–what we are seeing

By Jeff Margulies (US) and Katie Fragoso (US) on May 4, 2020 Posted in Consumer class actions

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.

Check out our detailed analysis here.… Continue Reading

Court tosses consumer class action based on alleged Prop 65 violation

By Jeff Margulies (US) on April 29, 2020 Posted in California Proposition 65, Consumer class actions

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