Unsurprisingly, tariff issues are becoming more and more prevalent for consumer products manufacturers, distributors, and retailers. In a positive turn, List 3 products are now eligible for exclusions from the significant Section 301 (China) tariffs. Check out this summary and analysis of the process from our international trade colleagues.
I’m delighted to announce that Norton Rose Fulbright will be hosting a webinar on May 30 at noon CDT with an absolute HazMat pro, Jim Shimko of Labelmaster.
Each day, U.S. businesses transport over one million HazMat shipments, and every one of them is subject to federal standards. Chances are, your company is shipping HazMat whether you know it or not. And while your logistics and operations personnel may be well-versed in the requirements, HazMat is heavily enforced, and in-house counsel should know the basics in case a problem arises. HazMat regulations establish standards for HazMat identification, training, labeling, … Continue Reading
We’ve previously published analyses on the California Air Resource Board’s (ARB) case settlements related to cosmetic products, but there are a whole host of other consumer products also subject to ARB enforcement. We thought it would be helpful to provide some insight into these as well.… Continue Reading
Privately, companies have long self-regulated supply chains to prevent human trafficking, forced labor, and child exploitation. Meanwhile, governmental efforts have lagged in the public sphere. But the past few years have shown a marked change. California, the United Kingdom, France, and Australia have enacted legislation requiring companies to publicly disclose the steps they are taking to eradicate slavery and human trafficking in their operations and supply chains for each financial year. Canada is currently considering similar legislation.… Continue Reading
A recent look-back at California Air Resource Board (CARB) case settlements highlights that cosmetics remain a target for CARB enforcement of its General Consumer Products Regulation.… Continue Reading
On June 28, 2018, the California legislature enacted the California Consumer Privacy Act of 2018 (the “CCPA”) a sweeping, GDPR-like privacy law that is likely to apply to most retailers that operate in California. It includes disclosure requirements, consumer access rights, opt-out rights, and deletion rights. The new law is set to take effect on January 1, 2020. Check out this summary and analysis of the law from our cybersecurity and date privacy colleagues.
By June 30, 2018, retailers accepting digital (online) credit card transactions must cease using encryption protocols known as SSL or TLS 1.0. Retailers must transition to TLS 1.1 or higher (such as the popular TLS 1.2) or else lose the ability to accept credit card payments. Note also that Nevada law requires compliance with the Payment Card Industry Data Security Standards (PCI DSS) with respect to Nevada cardholders.
The reason for the change is the PCI DSS, when version 3.1 was issued in April of 2015. Encryption protocol TLS 1.0 dates back to 1999, and was vulnerable to a variety … Continue Reading
Check out this new post from my colleague, Sue Ross, covering new standards for mobile device credit card payments, including at retail stores. The Payment Card Industry (PCI) Security Standards Council recently announced the new standards, which apply to PIN entry transactions on smartphones and tablets used at point-of-sale. The post is published in Norton Rose Fulbright’s Data Protection Report.… Continue Reading
In enacting the Personal Information and Privacy Protection Act (S-1913), New Jersey joins a growing minority of states with so-called “swipe laws.” New Jersey’s law generally aligns with swipe laws in the approximately one-third of other states with such laws, limiting the purposes and type of information a retailer may scan and retain from identification cards. However, New Jersey goes a step further than most in specifying data storage requirements and requiring notification directly to the consumer when ID information is compromised.
As of October 1, 2017, retailers will only be permitted to scan customers’ drivers’ licenses … Continue Reading
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
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.
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 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.
EPA’s final rule contains the same emissions limits as … Continue Reading
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);
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
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.
Responsible chemical management is a fundamental requirement … Continue Reading
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.
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
The Consumer Products Law Blog was recently featured in the LexBlog Network’s Leadership Blog series. Learn how our blog network identifies and posts legal updates you need before you may even be aware of it.
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
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
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
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
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 –