Lauren Shoor (US)

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California District Court grants preliminary injunction barring Prop 65 acrylamide lawsuits

Prop 65 claims for alleged exposure to acrylamide in food are all too common. In the first three months of 2021 alone there have been 109 acrylamide notices issued. Acrylamide is not a chemical that is intentionally added to food, but rather forms in many types of foods when cooked at high temperatures, including chips, … Continue reading

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

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 … Continue reading

Coffee roasters and retailers defeat Proposition 65 lawsuit

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 … Continue reading

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 … 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 … 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

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 … 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: Aloe Vera (non-decolorized whole leaf extract) Goldenseal root powder Malathion beta-Myrcene Nickel (soluble compounds) Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate … 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 … 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 … 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

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 … 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

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 … 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 … Continue reading

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 … 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 … 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 … 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 … 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 … 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 … Continue reading
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