Jeff Margulies (US)

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“Stay at Home” and “Shelter in Place” restrictions grow; updated business restrictions table

We continue to update our list of state and local business restrictions and limitations as quickly as we can given the rapidly changing landscape. As of Friday night, “Stay at Home” and “Shelter in Place” orders continue to proliferate, as Connecticut and Illinois have joined California and New York. In general, under these orders, the … Continue reading

What to expect from CPSC (at least for a little while)

Today at the International Consumer Product Health & Safety Organization annual meeting, U.S. Consumer Product Safety Commission Acting Chairman Bob Adler delivered the keynote address. Adler provided some insight into his priorities for the Commission for the foreseeable future, recognizing that he is currently the Acting Chairman and a Democrat—with the presidential election coming in … Continue reading

Class actions against CBD companies proliferate under federal and state law

On the heels of FDA sending out a tranche of warning letters to sellers of cannabidiol (CBD) products, enterprising plaintiffs lawyers have filed a spate of consumer class actions over these types of products. The complaints put forth a number of different theories tied to the current illegality of these products due to FDA regulation. … Continue reading

California modifies Prop 65 warning regulations

The California Office of Environmental Health Hazard Assessment (OEHHA) has adopted amendments to its 2016 Proposition 65 warning regulations. These amendments address issues that arose regarding how manufacturers and distributors communicate with retailers and other downstream businesses about the need to provide warnings. The amendments also revise the definition of the “actual knowledge” that creates a duty … Continue reading

New York follows Illinois with new lead-content warning requirement for children’s jewelry

In the final week of 2019, New York governor Andrew Cuomo signed into law Assembly Bill A6041 (S4046) to regulate children’s jewelry that contains specified levels of lead. The new law, which will take effect January 1, 2021 (without a “manufactured by” or sell-through date), prohibits the offer for sale or sale in the state of children’s … Continue reading

Braille on gift cards: ADA accessibility issue or novel shakedown?

As retailers and restaurants are well aware, the proliferation of website accessibility claims filed by serial plaintiffs’ counsel is not slowing down. But now a new wave of lawsuits—Braille on gift cards—is flooding the New York federal courts. Recent cases Starting in October 2019, a handful of plaintiff’s counsel have filed more than 200 putative … Continue reading

The mysterious world of Prop 65 reloaded, part 3: the warning

Editor’s Note: On August 30, 2018, OEHHA’s amendments to the Proposition 65 clear and reasonable warning regulations became effective. The amendments bring two major changes: the first ever allocation of responsibility for warnings, which places the primary responsibility on upstream entities rather than retailers; and significant changes to the “safe harbor” warning regulation, including warning content and methods of … Continue reading

What now? California finalizes Prop 65 exemption for coffee

On June 3, 2019, the California Office of Administrative Law approved a regulation adopted by the California Environmental Office of Health Hazard Assessment (OEHHA) exempting chemicals in coffee from Prop 65’s warning requirement. The regulation, which has an effective date of October 1, 2019, provides: Exposures to chemicals in coffee, listed on or before March … Continue reading

Proposition 65 survival guide

At long last, it’s here—OEHHA’s long-awaited amendments to the Proposition 65 “clear and reasonable warning” regulations become mandatory for products manufactured on and after August 30, 2018. As we are sure you’ve probably heard ad nauseam by now, the revisions make two key changes to the Proposition 65 regulations: (1) for the first time, they … Continue reading

California Proposition 65 amended warning regulations

On August 30, 2016, OEHHA’s long-awaited amendments to the Proposition 65 clear and reasonable warning regulations became final.  The amendments bring two major changes: (1) an allocation of responsibility for providing warnings between retailers and suppliers; and (2) revisions to the safe harbor warning requirements, including warning content and methods of transmission. Allocation of responsibility … Continue reading

California proposes to exempt coffee from Prop 65 warning requirement

On April 12, 2018, we wrote about the decision in Council for Research on Education in Toxics v. Starbucks, in which a California Superior Court judge rejected the evidence presented by coffee roasters and retailers to demonstrate that exposures to acrylamide in coffee were exempt from Proposition 65’s warning requirement. With a motion for permanent … Continue reading

LA judge rules that coffee requires a Proposition 65 warning for acrylamide

On March 28, 2018, Superior Court Judge Elihu Berle issued a proposed statement of decision that would require coffee roasters and retailers to provide Proposition 65 cancer warnings for coffee sold in California. What the case is about Plaintiff Council for Research and Education on Toxics (CERT) asserts that approximately 70 coffee roasters and retailers … Continue reading

Proposition 65 Listed Chemical update

Here is the latest roundup of Proposition 65 chemical issues looming on the horizon for consumer products. Reminder: warnings are required 12 months after the listing effective date, assuming that there is an exposure, and the exposure exceeds the level that requires a warning: Listed effective Oct. 27, 2017: N,N-Dimethylformamide (DMF), CAS No. 68-12-2, used … Continue reading

California Governor signs Proposition 65 amendment

Updating our prior post, California Governor Jerry Brown has signed the Proposition 65 amendment bill. As of January 1, 2018, Proposition 65’s certificate of merit requirements will be amended to: Require the Attorney General to send a letter to the private enforcer and the recipients of the 60-day notice when the Attorney General has reviewed … Continue reading

California legislature seeks to clarify Prop 65 certificate of merit discovery rules

The California Legislature has done something it’s found exceedingly difficult to do since Proposition 65’s adoption by ballot initiative 31 years ago: amend the law. For only the third time since 1986, the Legislature has made substantive revisions to Prop 65 that focus on the private enforcement mechanism. Since 2001, private enforcers who serve a … Continue reading

ALERT: Merchants face new wave of class actions alleging excessive shipping charges

Recently filed complaints seemingly forecast a new type of class action in California courts: consumer protection claims based on allegations that merchants are overcharging consumers for shipping and delivery charges. Such claims have the potential to affect all companies selling consumer goods online or by mail order. Even though there is no specific statute forbidding … Continue reading

Shedding some light on BPA settlements

In our post last week, we outlined the terms of the first two published Proposition 65 BPA settlements, for polycarbonate drinkware. We explained that we don’t know if these settlement terms would become a standard for future settlements and compliance because of the nature of the settlements – out-of-court, with the same plaintiff and Proposition 65 plaintiffs firm. After some consideration, … Continue reading

First Proposition 65 BPA settlements hit

After months of speculation about the first BPA settlement reformulation standards, we have our first clue: 1,000 parts per million with an option to warn. Serial polycarbonate drinking glass user Anthony Ferreiro resolved his allegations of BPA exposure without a warning from polycarbonate drinkware through two out-of-court settlements (1) (2), which recently became available on … Continue reading

Prop 65 safe harbor level for BPA finalized

Following the California Office of Environmental Health Hazard Assessment’s proposed regulations for temporary point-of-sale warnings for BPA exposures from canned and bottled foods and beverages, this week OEHHA finalized the Maximum Allowable Dose Level for BPA of 3 micrograms per day from dermal exposure from solid materials. The MADL will go into effect on October … Continue reading

Update: OEHHA issues revised Prop 65 warning regulations

On May 16, OEHHA issued its fifth iteration of the revised Proposition 65 warning regulations. As these changes largely seek to clarify existing language in the proposed regulations since the prior revision in March, we have a pretty good idea of what the final regulations will look like (although OEHHA does reserve the right to … Continue reading
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