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2017 marks first year all companies must provide UK Modern Slavery Act disclosure

2017 marks the first year when all companies covered by the UK Modern Slavery Act 2015 must publish a statement.

Under section 54 of the Act – which is similar to the California Transparency in Supply Chains Act – commercial organizations that do business in the UK and have a global turnover of at least £36 million in any financial year are required to publish a slavery and human trafficking statement. The statement must state the steps they have taken to eradicate slavery and human trafficking in their operations and supply chains for each financial year. The statement must be … Continue Reading

California Court of Appeal refuses to honor jury trial waiver

In today’s business world, companies frequently enter into contractual provisions with their customers to limit jury trial exposure as part of managing future risks. However, if you think that agreeing that any dispute can be resolved without a jury trial is enough to insulate you and your business from this threat – THINK AGAIN.

Just last month, the California Court of Appeal overturned a contractual provision waiving the parties’ right to a jury trial, despite the fact that such waiver was fully enforceable under New York, the law agreed to in the contract’s choice of law section.

In Rincon EV Continue Reading

Chicago checkout bag tax set to begin

For retailers and other companies doing business in the Windy City, the Chicago Checkout Bag Tax Ordinance implements a $0.07 tax on “the retail sale or use” of paper or plastic checkout bags. It goes into effect on February 1, 2017. The new tax accompanies the repeal of the city’s reusable bag ordinance.

The tax operates like a typical product stewardship fee – wholesalers of paper or plastic checkout bags must collect the tax when supplying checkout bags to stores in the city and then pass the additional cost down the supply chain.  Wholesalers are responsible for remitting the … Continue Reading

EPA publishes formaldehyde in composite wood rule – Dec. 2017 compliance dates

EPA recently published its final rule restricting formaldehyde emissions from composite wood. The publication now triggers the rule’s effective date (Feb. 10, 2017) and the first compliance dates (December 12, 2017). The rule implements the formaldehyde standards found in Title VI of TSCA. EPA has expressly stated that the rule is “consistent, to the extent EPA deemed appropriate and practical considering TSCA Title VI, with the requirements currently in effect in California” under CARB’s ATCM Phase 2, but there are some differences that are bound to cause compliance headaches.

Emission Standards

EPA’s final rule contains the same emissions limits as … Continue Reading

Clamshell compliance: California’s Rigid Plastic Packaging Container law

California remains on the forefront of sustainability and recycling requirements. A key restriction in California is the Rigid Plastic Packaging Container Law, which targets hard plastic product packaging (namely “clamshells”).  The law requires that product manufacturers reduce waste from covered packaging through several methods.

The California Department of Resources Recycling and Recovery, referred to as CalRecycle, administers the law and enforces its requirements. Non-compliance can subject a manufacturer to up to $100,000 in fines per year.

What the law covers

The law applies to packaging that is:

  • Made entirely of plastic (except for incidental portions of the packaging);
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New PCI requirements for retailers

For retailers that accept credit or debit cards and use service providers, a new version of the PCI Data Security Standards (PCI DSS v3.2) will impose new requirements as of November 1, 2016.

The Payment Card Industry (PCI) Security Standards Council issued “clarifications” and “evolving requirements” in the new version. Clarifications are changes to ensure “that concise wording in the standard portrays the desired intent of the requirements.” Evolving requirements aim to “ensure that the standards are up to date with emerging threats and changes in the market.”  The Council also issued guidance as part of the new standards.

Altogether, … Continue Reading

MRSL: A new standard for chemical management

We are pleased to welcome guest blogger and BLC Leather Technology Centre’s chemical and regulatory advisor, Georgina Mawer, to Consumer Products Law Blog. Georgina focus on product safety assessments, including guidance on chemical testing and analysis, as well as research and delivery of technical contract work. An experienced  chemical analyst, her studies focused on forensic science. 

BLC is the leading independent leather testing and technology center, working with manufacturers, retailers and tanners in over 40 countries, delivering a range of leather, footwear and accessories related services which include testing, training and consultancy.

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Responsible chemical management is a fundamental requirement … Continue Reading

FDA changes course, now seeking public comments on the definition of “natural” in food labeling

Last month, after decades of relative inaction regarding the definition of the term “natural,” the Food and Drug Administration announced that it was accepting public comments on the use of the word, including whether it can be false or misleading on food labels. Among other questions, the FDA asks:

  • Whether it is appropriate to define the term “natural,”
  • If so, how the agency should define “natural,” and
  • How the agency should determine appropriate use of the term on food labels.

The FDA’s silence on the definition of natural in the past created a surge in consumer class actions alleging false … Continue Reading

California federal court remands injunctive relief when no Article III standing

A common battle in consumer class actions is whether the named plaintiff has standing to seek injunctive relief in connection with a false advertising or unfair competition claim. To satisfy Article III standing for injunctive relief in federal court, plaintiffs must show a realistic threat they will be harmed again by the same practice. On the other hand, this showing is not always necessary to establish standing in California state court.

When a named plaintiff in a false advertising case argues he or she is likely to be injured again (and so the challenged practice must be stopped), this rightly … Continue Reading

GNC reaches agreement with NY over supplement testing

In response to a NY Attorney General investigation into the composition of store-brand herbal supplements, GNC has committed to expand testing and authentication procedures beyond those currently required by the FDA.  It remains to be seen whether this will begin a push for stricter controls over these types of products.  A detailed discussion can be found on the Norton Rose Fulbright Brand Protection Blog.… Continue Reading

The mysterious world of Prop 65, part 9: The naturally occurring exemption

A hot topic of late is the so-called Proposition 65 “naturally occurring” exemption.  This is due largely to the addition of pulegone to the Prop 65 list in April 2014.  Pulegone is a naturally occurring chemical found in many essential oils, including peppermint oil. With warnings required on products containing pulegone that cause significant exposures as of April 18, 2015, Prop 65 forums have been peppered with questions about compliance for cosmetic and food products. Unfortunately, the naturally occurring exemption is unlikely to solve many Prop 65 pulegone problems.

The naturally occurring exemption

Regulations promulgated by OEHHA define the Continue Reading

Making online terms and conditions stick

Because the interaction between online retailers and their customers is limited, online retailers have little choice but to present terms and conditions of sale on their websites. These online terms and conditions present concepts important to online retailers, including arbitration and choice of law provisions. The way in which online retailers present these terms and conditions to customers, and the way in which the customers manifest assent, is crucial to determining whether these terms and conditions are enforceable. Here are some key considerations in presenting online terms and conditions that may help to avoid court when you’re expected to be … Continue Reading

Highlights from CPSC Day at ICPHSO 2015, part 2

CPSC Chairman Elliot Kaye was the keynote speaker for CPSC Day, and he did not disappoint. Chairman Kaye’s speech focused on providing the consumer products industry with a sense of his priorities for the coming years, which I have listed below.

Pressure to increase civil penalty amounts

Chairman Kaye’s most notable comment was that he is directing CPSC staff to push for significantly higher civil penalties in CPSC settlements for failure to report and other violations of the CPSA.  Chairman Kaye stated that the significant increase of the civil penalty maximum (for each violation) and cap (for a series of … Continue Reading

Highlights from CPSC Day at ICPHSO 2015

We are here at the ICPHSO conference in Orlando for CPSC day. Key speakers from CPSC include Chairman Elliot Kaye, the Team Lead for Fast Track Recalls, the Director of Regulatory Enforcement, and the Director of Field Investigations. Here are highlights from the morning sessions on CPSC recalls and reporting, enforcement, and import issues.

Recalls and Reporting

  • Emphasis on joint recalls with Canada, and increased incorporation of Mexico into joint recalls.
  • Increased use of social media to publicize recalls, especially if recalling firms use social media to advertise products and communicate with customers.
  • Err on the side of reporting –
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Update: ARB issues extension procedure for Consumer Products Survey

Recognizing the heavy lift involved in responding to the 2013 Consumer Products Survey, today the California Air Resources Board published procedures for obtaining extensions of the March 2, 2015 deadline.

Formulators

As a matter of course, formulator response dates are extended to April 1, 2015.

Responsible Parties

Responsible Parties, however, will need to provide a request for an extension to csmrprod@arb.ca.gov by February 27, 2015.  The request must be titled “2013 Survey Additional Extension Request – [Company Name]” and provide the following information:

  • When the company learned about the 2013 survey
  • When the company started working on
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DC Circuit Court puts limits on FTC’s advertising substantiation requirements

Recently, a three-judge panel reversed an FTC order requiring POM Wonderful to substantiate certain health-related advertising claims by using two randomized, well-controlled human clinical trials. This new ruling indicates that FTC’s ability to impose substantiation requirements is not boundless and courts may intervene if they believe the standards are too strict.

The full article DC Circuit Court puts limits on FTC’s advertising substantiaion requirements can be found at Norton Rose Fulbright’s Brand Protection Blog.… Continue Reading

Ski resorts and outdoor industries may face increasing liability

When a business’s consumers are skiers and snowboarders, knowing the potential liability for negligence is critical. Ski resort operators often encounter claims of unsafe terrain and failure to warn. Equipment manufacturers and sellers often run into product liability and personal injury claims regarding faulty bindings, skis, or other equipment.

Outdoor Sports Liability Protections

Early personal injury cases brought by skiers in the 1970s spurred a slew of protective measures for ski resorts and equipment manufacturers. To help boost the burgeoning industry, several states passed laws that limit negligence claims brought by injured skiers. But as outdoor sports become more common, … Continue Reading

UPDATE: California AG appeals foie gras ruling

In the wake of the federal court’s decision enjoining California’s foie gras ban, many restaurant owners rejoiced, making the delicacy immediately available. But restaurant owners may not want to throw out their creative menu techniques just yet.

Following the court’s decision, the California Attorney General has filed a notice of appeal. The ball is in the Ninth Circuit’s court to issue a briefing schedule, and the notice is a straightforward document providing no insight into the basis for the AG’s appeal, leaving us all guessing when this matter might be addressed, and on what grounds. We will post further … Continue Reading

Welcome to Norton Rose Fulbright’s Consumer products law blog

We are excited to announce the launch of the consumer products law blog, which will concentrate on legal issues impacting the consumer products industry.  The blog will cover a wide range of consumer products topics, including:

  • Product safety and regulatory compliance issues
  • Consumer product recalls
  • Defense of enforcement proceedings
  • Consumer class actions and other litigation

The blog is led by our consumer products team, which offers more than 30 years of experience in all aspects of product safety and regulatory compliance issues, as well as defense of enforcement proceedings and consumer class actions.

While the blog will focus on … Continue Reading

Health alert – Skin-lightening or acne creams from Mexico may contain mercury

The California Department of Public Health has issued a public health alert warning that skin-lightening or acne creams from Mexico (used for fading freckles, blemishes and age spots, as well as treating acne) have caused multiple cases of mercury poisoning in California.  The poisoning cases include several children and babies exposed to the mercury via contact with family members who used the products.

The creams are usually contained in plastic containers that either have no label, or hand-made labels.  Consumers should be on the lookout for creams that are light in color but turn dark grey/green after prolonged exposure to … Continue Reading

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