Lauren Shoor (US)

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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

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

Mitigating advertising risks during the COVID-19 crisis

By Lauren Shoor (US) on March 27, 2020 Posted in General

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

The mysterious world of Prop 65 reloaded, part 5: the notice

By Will Troutman (US) and Lauren Shoor (US) on February 10, 2020 Posted in California Proposition 65

Editor’s Note: Since our original post, there have been two significant changes:

In 2017, the California Legislature amended the certificate of merit requirements. The amendments require the Attorney General to notify a private enforcer and the alleged violator if the AG finds no merit to an action. The amendments also make the basis for the certificate of merit discoverable in litigation (to the extent not otherwise privileged).
The 2016 revised warning regulation created the “five business day exemption” for retailers. The five business day period is triggered by “actual knowledge,” which presumably is established by the 60-day

California modifies Prop 65 warning regulations

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

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 to warn for retailers in certain circumstances under the warning regulations. The changes become effective on April 1, 2o20.

The 2016 amended warning regulation

In August 2016, OEHHA adopted a regulatory package that made sweeping changes to Prop 65’s warnings regulations (mandatory … Continue Reading

The mysterious world of Prop 65 reloaded, part 4: the penalties

By Lauren Shoor (US) on October 20, 2019 Posted in California Proposition 65

Editor’s Note: Not much has changed since our original post regarding civil penalties. Unfortunately, Prop 65 enforcers are still out attempting to collect vast amounts of civil penalties (and attorney’s fees) in private enforcement actions.

The obvious concern for many companies facing potential exposure for a Prop 65 violation is what is this going to cost me? The short answer: a lot. The potential for high civil penalties is daunting to many companies, a fact of which private litigants are well aware and bank on to incentivize quick settlements.

Penalty amount

Prop 65 authorizes monetary penalties of up to $2,500 … Continue Reading

The mysterious world of Prop 65 reloaded, part 2: the list

By Will Troutman (US), Lauren Shoor (US) and Eva Yang (US) on September 19, 2019 Posted in California Proposition 65

Editor’s Note: The way that chemicals get added to the list has not changed; however, the list of Prop 65 chemicals has. Here are some recently added chemicals that may be found in consumer products:

With the exception of PCBTF (added on June 28, 2019) and Nickel (added on October 26, 2018), all of the aforementioned chemicals have all been added to the list at least … Continue Reading

The mysterious world of Prop 65 reloaded, part 1: The law

By Lauren Shoor (US) on September 16, 2019 Posted in California Proposition 65

Editor’s Note: This post has been updated to reflect 2018 revisions to the Prop 65 regulations, which for the first time allocated responsibility for compliance within the supply chain. These revisions place the primary responsibility for compliance on manufacturers, distributors, and importers, while limiting the circumstances in which retail sellers are responsible for providing consumer product warnings.

To the average person in California, if they know anything about Proposition 65 at all, it is usually because they have a seen a warning sign in a bar or at a store. In most instances, after seeing the sign, they likely kept … Continue Reading

The mysterious world of Prop 65–reloaded!

By Will Troutman (US) and Lauren Shoor (US) on September 10, 2019 Posted in California Proposition 65

Nearly five years ago, we started publishing our first serial, The mysterious world of Prop 65. Although we knew we struck gold with the brilliant series title, we could not have contemplated that these would become our most visited, read, and referred to posts.

Since 2014, a lot has changed in the Proposition 65 landscape, ranging from the revised safe harbor warning regulations in 2018 to the cast of characters comprising the Prop 65 plaintiff’s bar. We thought it high time to provide an updated edition. Over the next few weeks, we will be posting The mysterious world … Continue Reading

Six months: how the new Prop 65 regulations have impacted retailer enforcement

By Lauren Shoor (US) on April 7, 2019 Posted in California Proposition 65

It’s been about six months since the new Prop 65 regulations allocated the primary responsibility for providing warnings to suppliers, manufacturers, distributors, and importers, while limiting retailers’ responsibility to limited, specified circumstances. Many wondered what impact these new regulations would have on the enforcement of Prop 65 against retailers. Six months in, the answer still isn’t clear.… Continue Reading

Proposition 65 survival guide

By Jeff Margulies (US), Will Troutman (US), Lauren Shoor (US) and Andy Guo (US) on August 30, 2018 Posted in California Proposition 65

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 allocate responsibility for warnings among suppliers and retailers; and (2) they make several substantive changes to the content and methods of transmission for “safe harbor” warnings.… Continue Reading

California Proposition 65 amended warning regulations

By Jeff Margulies (US), Will Troutman (US), Lauren Shoor (US) and Andy Guo (US) on August 30, 2018 Posted in California Proposition 65

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

Under the existing Proposition 65 regulations, any party in the supply chain could be held liable for failure to provide a warning. The revised regulations allocate responsibility for warnings primarily to manufacturers, distributors, and importers (together, suppliers), with retailers responsible in specified circumstances.

Suppliers … Continue Reading

Washington restricts flame retardants in children’s products and upholstered furniture

By Will Troutman (US) and Lauren Shoor (US) on May 26, 2017 Posted in Green chemistry, Recent legislation and regulations

On July 1, 2017, Washington’s “Toxic-Free Kids and Families Act” goes into effect, restricting the use of the following five flame retardants in children’s products and residential upholstered furniture:

Additive TBBPA
Deca-BDE
HBCD (HBCDD)
TDCPP
TCEP

Under the Act, manufacturers, wholesalers, and retailers are prohibited from manufacturing, knowingly selling, offering for sale, or distributing for sale or use in Washington children’s products and residential upholstered furniture containing these five flame retardants in amounts greater than 1,000 ppm in any product component.

While the impact may be muted because several states, including California, New York, Vermont and Maryland, have … Continue Reading

Prop 65 safe harbor level for BPA finalized

By Jeff Margulies (US), Will Troutman (US) and Lauren Shoor (US) on June 21, 2016 Posted in California Proposition 65

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 1, 2016.

Once in effect, this will be the rate of exposure at which a warning will be required for dermal exposure to BPA.

Now that the first BPA 60-day notice of violation is out, it remains to be seen whether this seemingly low MADL … Continue Reading

What makes for a $15 million CPSC penalty?

By Will Troutman (US) and Lauren Shoor (US) on March 25, 2016 Posted in Consumer product recalls, Consumer Product Safety Commission

CPSC just announced a record $15.4 million civil penalty settlement with Gree, manufacturers of dehumidifiers widely sold throughout the United States. While the magnitude of this blockbuster settlement makes it newsworthy, what it tells us about CPSC’s perspective on enforcement actions is the real story.

CPSC’s allegations

The limited allegations in the published settlement agreement allege that Gree failed to timely report to CPSC when it knew about the defect and fire hazard, that it knowingly made misrepresentations to CPSC staff during its investigation, and that it put UL safety certification marks on its products when it knew that the … Continue Reading

California Attorney General seeks to change Proposition 65 settlement landscape

By Lauren Shoor (US) on October 28, 2015 Posted in California Proposition 65

Continuing a flurry of activity this year to reform Proposition 65 in California, the Office of the Attorney General is proposing amendments to the Proposition 65 regulations that would affect settlement terms, penalty amounts, and attorneys’ fees in civil actions filed by private persons in the public interest. For a more detailed discussion of Proposition 65 settlements in private enforcement actions, please see our prior post on this topic.

Per the Initial Statement of Reasons, this rulemaking is intended to:

ensure that OEHHA gets the civil penalties specified in Proposition 65,
limit the ability of private plaintiffs to

Jerry Brown signs new California “Made in USA” law

By Lauren Shoor (US) on September 2, 2015 Posted in Recent legislation and regulations

Yesterday, California’s Governor Brown signed SB 633 into law. The new law exempts certain merchandise from the prohibition that merchandise being sold in California cannot be labeled with “Made in the USA” or similar words when the merchandise or any component has been entirely or substantially made outside of the United States.

Made in the USA?

The new California law will allow merchandise to be labeled “Made in the USA” if:

the foreign components or parts do not constitute more than 5% of the final wholesale value of the product, or
the foreign components or parts do not constitute more

CA Supreme Court won’t respond to question from Ninth Circuit on privacy law for credit card customers

By Lauren Shoor (US) on August 31, 2015 Posted in Recent consumer products case law

In addition to refusing to hear an appeal in Harrold v. Levi Strauss & Co., which we previously posted about, the California Supreme Court also declined to respond to a question the Ninth Circuit in Davis v. Devanlay Retail Group, Inc. certified to the Court, seeking clarification of California Song-Beverly Credit Card Act’s reach regarding retailers’ request for credit card customers’ personal identification information at the point of sale. The Court denied the request for certification pointing to the authority established by Harrold. Given the Court’s denial of the petition for review and denial of the Ninth Circuit’s … Continue Reading

UPDATE: Cal. Supreme Court refuses review of privacy issue for credit card customers

By Lauren Shoor (US) on August 27, 2015 Posted in Recent consumer products case law

Yesterday the California Supreme Court refused to hear an appeal in Harrold v. Levi Strauss & Co., a case that clarified the scope of California’s Song-Beverly Credit Card Act, Civil Code section 1747.08, in the context of retailers’ requests for personal identification information from credit card customers standing at the point of sale in a store. The Court also refused a request for the opinion to be depublished. Therefore, the opinion from the Court of Appeal stands, establishing binding precedent for lower courts in the state.

For a detailed discussion of Harrold and its impact on retailers, see our … Continue Reading

UPDATE: Bill to Amend California’s “Made in USA” Law on to Governor’s Desk

By Lauren Shoor (US) on August 18, 2015 Posted in Recent legislation and regulations

Yesterday, the California Senate voted unanimously to approve amendments made in the Assembly to SB 633. Now, SB 633 will move to Governor Brown for his approval. For more detail, check out our recent posts about pending legislation in California that would amend California’s “Made in the USA” law.… Continue Reading

UPDATE: Bill to amend California’s “Made in USA” law gets one step closer to becoming law

By Lauren Shoor (US) on July 17, 2015 Posted in Consumer class actions, Recent consumer products case law, Recent legislation and regulations

Following up on our recent post about two bills pending in the California legislature that would amend California’s “Made in USA” law—yesterday the Assembly passed SB 633. Next, SB 633 will be sent back to the Senate for a concurrence vote, and assuming the Senate approves, the bill would then go on to the Governor’s desk for signature. The Legislature goes on summer recess today, so we won’t find out the fate of SB 633 for at least another month. So far that bill has not received any “no” votes, either in committee or on the floor of … Continue Reading

Changes coming to California’s “Made in USA” law?

By Lauren Shoor (US) on July 16, 2015 Posted in Consumer class actions, Recent legislation and regulations

California’s “Made in the USA” law imposes strict standards on when products may be labeled “Made in the USA.” This strict standard has resulted in recent litigation against companies whose products allegedly contain some (albeit relatively minor) foreign components. But, the Legislature is seeking to amend the law to loosen this standard with two pending bills—AB 312, which has the Assembly has already approved, and SB 633, which the Senate has already approved.

AB 312

In May, the Assembly approved, AB 312, which would align the California law with the Federal Trade Commission standard, and would allow “Made … Continue Reading

Court rules California “Made In USA” claims not actionable if only on product websites

By Lauren Shoor (US) on June 29, 2015 Posted in Consumer class actions, Federal Trade Commission

We have been following California’s “Made in the USA” standard and recent cases interpreting it. While courts so far have been reluctant to dismiss claims at the pleading stage, last week a federal judge dismissed a class action claiming Lands’ End violated California’s “Made in the USA” standard.

In Oxina v. Lands’ End, Inc., plaintiff filed a false labeling claim because she ordered a necktie from the Lands’ End website described as “Made In USA”, but received a necktie that was identified as “Made In China.” The court granted Lands’ End’s motion to dismiss (with leave to amend) on the … Continue Reading

California Court of Appeal finally issues guidance to retailers on privacy issue for credit card customers

By Lauren Shoor (US) on May 25, 2015 Posted in Consumer class actions, Recent consumer products case law

California’s Song-Beverly Credit Card Act, Civil Code section 1747.08, prohibits retailers from requesting or requiring “personal identification information” (PII) in connection with consumer credit card transactions and then recording that information. Following a February 2011 California Supreme Court opinion in Pineda v. Williams-Sonoma Stores, Inc., plaintiffs filed hundreds of putative class action complaints against retailers throughout California alleging violations of the Act. But, the extent of the Act’s prohibition in the context of requests for PII at the point of sale in brick and mortar stores has been unclear.

Confusion

The question is whether the Act prohibits … Continue Reading