Lauren Shoor (US)

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Mitigating advertising risks during the COVID-19 crisis

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

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
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 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

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

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

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!

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

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

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

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

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

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?

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

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
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Jerry Brown signs new California “Made in USA” law

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
Continue Reading

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

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

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 gets one step closer to becoming law

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?

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

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

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

California’s Made In USA standard survives another test in court

Another court in the Southern District of California has agreed that California’s Made in USA law is more stringent than the federal standard, holding that the law is not preempted by the Federal Trade Commission Act or the Textile Fiber Products Identification Act.  But the court also addressed a new claim—that the California law violates the Dormant Commerce Clause of the United States Constitution.

In Clark v. Citizens of Humanity, LLC, plaintiff alleged that defendants’ jeans were falsely labeled as “Made in USA” when they actually contained fabric, thread, buttons, rivets, or subcomponents of the zipper manufactured outside … Continue Reading

Lack of defendant’s consumer records may not mean a class is unascertainable

A California Court of Appeal recently held that a class is not unascertainable simply because individual class members cannot be identified from a defendant’s records so long as there is some objective means for identifying class members.

In Aguirre v. Amscan Holdings, Inc., plaintiff alleged that defendant Party America violated the Song-Beverly Credit Card Act by requesting and recording credit cardholders’ zip codes in conjunction with credit card purchase transactions.

Party America moved for an order striking and dismissing the class allegations from the complaint and denying class certification. It argued the class was not ascertainable because there were … Continue Reading

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