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
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.
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
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
When OEHHA, the California agency that … Continue Reading
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
In a sign of the dramatically uncertain nature of next steps, more states have issued orders to partially reopen their economies, while others have extended closure orders that were set to expire at the end of the month.
Alaska, Colorado, Georgia, Minnesota, Mississippi, Montana, Oklahoma, South Carolina, Tennessee, and Vermont all have taken the first step towards a gradual reopening. While some of these states have loosened restrictions more aggressively than others, some common themes emerge. Businesses that do reopen must try to maintain social distancing, operate at reduced capacity, and take measures to ensure the safety of their … Continue Reading
State coalitions forming
In an effort to plan for reopening their economies, several states have announced regional collaboration efforts. This includes New York and six other Northeastern states, and California, Oregon, and Washington in the west. Earlier this week, California Governor Gavin Newsom outlined a framework to reopen the western economies, predicated on six key indicators: … Continue Reading
We are continuing to track state and local restrictions, updated daily, here.
In a sign of things that may be coming nationally, Los Angeles Mayor Eric Garcetti has issued an “emergency order” requiring employees of “Essential Businesses” to wear face coverings. The order also requires customers visiting such businesses to wear face coverings, at the risk of not being served if they fail to comply. Businesses are expressly permitted to refuse entry to any customer not wearing a face covering.… Continue Reading
What seemed like a novel and crazy idea a little over a week ago has now become the majority approach to “flattening the curve” in the United States. And those states that have not yet adopted “stay at home” or “shelter in place” orders generally have comparable restrictions at the county, city, or municipal levels.
In the wake of the coronavirus, some sellers of essential goods and services have tried to greatly increase the cost of their products to take advantage of increased demand. But sellers beware: Public officials all over the country have expressed a willingness to prosecute price gougers and companies that may facilitate sales of goods with inflated prices.
Stay at Home and Shelter in Place orders continue to proliferate, and we are also seeing an uptick in curfews being set. Notable updates in:
For those of you have been following our running list of state and local business restrictions here on the blog, we are happy to report that we have been upgraded to a dedicated website. And with our upgrade comes an added feature–links to the state and local orders we are discussing. Please continue to follow us there (we will also keep updating the blog, but it is not nearly as fancy).
To say the least, it was a tumultuous weekend. We have updated our coronavirus business restrictions and limitations table, including our first “Hunker Down” order. We anticipate rapid and frequent changes over the next several days, and we will do our best to keep up-to-date.
We also would love for you to join us this Tuesday, March 24 at 9 AM PDT for a webinar to discuss updates on these state and local activities, with a focus on the orders issued in California, New York, Illinois, and Texas, as well as our insights into interpreting these orders and the … Continue Reading
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 public is required to stay at home except for essential activities, and all “non-essential” business must cease public or in-person operations. Remote working is permitted.
“Essential” businesses are set forth in detail in each order, but they largely seek to encompass the business sectors set … Continue Reading
We have just finished a big update of our ongoing coronavirus tracker, which includes California’s stunning “Stay-at-Home” order just issued this evening. We will continue to monitor state and local restrictions nationwide, incorporating them each day.
Stay safe and healthy! Consider a Friday “Quarantini” and a virtual Happy Hour!
Please visit our new State and Local Restrictions webpage for updated information: https://www.nortonrosefulbright.com/en/knowledge/publications/52aa88af/covid-19-and-us-response-a-state-by-state-overview.
In light of the growing number of state and local restrictions and limitations, we thought it would be helpful to publish an informal list of mandates as we become aware of them. We will do our best to update the list as we learn of new requirements, but we caution that this list should only be considered a starting point. Many of the state and local requirements have exceptions (e.g., for “essential” vs. “non-essential” businesses) that require a closer look, and the states and localities with requirements … Continue Reading
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 November, it is unclear how much longer he will be in this role. Overall, he intends to focus on providing stability to the Commission for however long he is the Acting Chairman. Beyond this, here is a rundown of his comments and his specific … Continue Reading
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. These include allegations that companies:
- misled consumers by marketing their products as dietary supplements,
- inaccurately listed CBD dosages or product content; and
- made unsubstantiated claims about CBD’s ability to treat, prevent, or cure human disease.
Is it worth the risk?
Hemp-derived CBD was legalized in … Continue Reading
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’s Department of Toxic Substances Control (DTSC) has proposed listing nail products containing methyl methacrylate (MMA) as its latest Priority Product under its Safer Consumer Products regulation.
DTSC has gone after nail products before–nail products with toluene are already a proposed Priority Product awaiting adoption by the California Legislature.
If the newest proposal is adopted, responsible parties will need to remove impacted products from sale in California or undertake an alternatives analysis in order to continue selling in California.
The California Safer Products Regulation
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 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 jewelry with lead content greater than 0.004% (40 parts per million [ppm]) but less than 0.01% (100 ppm)* unless it contains a label with the warning language listed below
The bill’s text argues that “stringent controls on the amount of lead … Continue Reading
The U.S. Food and Drug Administration issued a revised consumer alert on Cannabidiol (CBD), warning that the agency is aware that some companies are marketing CBD products in ways that violate the federal Food, Drug and Cosmetic Act (FD&C Act), and that may put the health and safety of consumers at risk. The FDA also sent a new round of warning letters to 15 companies in an effort to crack down on illegal selling practices.
The CBD industry is one of the fastest growing markets in the US. CBD-infused ointments, gummy bears, beauty creams, baby oil, dog treats—you name it, … Continue Reading
A brief internet search shows that unambiguously, industry, regulators, and NGOs all agree that furniture tip-over is a priority in the consumer markets sector. However, there is little agreement on the best approach. Over the last year alone, we have seen the U.S. Consumer Product Commission announce that the Commission deems “clothing storage units” that do not meet ASTM F2057-17 as posing a “substantial product hazard” (presumably requiring a Section 15(b) report and perhaps recall). ASTM F2057-17 requires tip-over testing and permanent warning labels for any clothing storage unit over 30 inches in height. CPSC announced this arguably backdoor rulemaking … Continue Reading
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 transmission.
This post focuses on the content of the warning itself; a detailed discussion of supplier and retailer responsibility can be found here. For a look at the impact of the new regulations six months after passage, click here… Continue Reading