Retail & Consumer Products

As this blog has reported on numerous occasions, plaintiffs have brought claims challenging labeling of food products for mislabeling.  The labels challenged include the use of the term “natural”, “0g trans fat” and the infamous claim of misbranding relating to “crunch berries.”

We have previously blogged about the sometimes difficult decision that companies face when classifying their products as “children’s” or “general-use” products and the uncertainty of predicting whether the Consumer Product Safety Commission (“CPSC”) will agree with their classification.

A growing number of states are passing Green Chemistry laws, e.g.; California, Connecticut, Maine, Minnesota, and Washington State.  These laws present a challenge to manufacturers who distribute and sell products into the 50 states.

Since the inception of the U.S. Consumer Product Safety Commission (CPSC), voluntary recall agreements between the agency and companies conducting a recall (commonly referred to as “corrective action plans”) have not been legally binding on the company conducting the recall.

Yesterday President Obama announced his intent to nominate Joseph P. Mohorovic as a Commissioner on the Consumer Product Safety Commission. If confirmed by the Senate, he would succeed former Republican Commissioner Nancy Nord whose term expired at the end of October.

Two months ago, our colleague Dan Herling cautioned on this blog about making unsubstantiated “Made in the USA” claims on consumer products.  He compared the Federal Trade Commission’s standard to California’s more stringent standard under Business & Professions Code 17200.

As readers of this blog are well aware, classifying products as “children’s products,” as opposed to “general use products,” has important ramifications under federal and state consumer product safety laws.

California’s District Courts have, of late, become the go-to jurisdictions for plaintiffs bringing ‘natural’ labeling lawsuits against national food manufacturers.

In February of this year, CPSC Chairman Inez Tenenbaum announced that she would not seek a second term as Chairman of the agency.

As this space has pointed out on several occasions, California’s laws are nothing, if not unique.  One such law is California’s Business & Professions Code Section 12606.2 which prohibits a container or package from having false bottoms, false sidewalls, a false lid or covering or to “facilitate the perpetration of deception or fraud”. 

While perhaps not as far down the rabbit hole as Alice was, the Courts within the Northern District of California are decidedly split on whether to use the primary jurisdiction doctrine to stay food cases with “natural” claims. 

The CPSC is considering whether to issue an interpretative rule (to be included as part of 16 CFR 1115) that would significantly alter the way in which voluntary recalls and corrective action plans (CAPs) are conducted. 

California is one of the largest consumer markets in the United States.   When it comes to environmental regulations, California can be the tail that wags the dog. It is not difficult for manufacturers, importers and retailers to inadvertently run afoul of California’s comprehensive environmental regulations.  Those regulations just got a little more comprehensive.

We recently wrote about CPSC’s proposed amendment to its current limitations on CPSC staff’s participation in voluntary standards organizations. Under the proposed amendment, staff would be allowed to cast votes on voluntary standards and hold leadership positions on voluntary standard committees.

My experiences at CPSC during the 2011 and 2012 “shutdown showdowns” are hard to forget. We spent a considerable amount of time preparing for a potential shuttering of the agency because of the very strict nature of the Anti-Deficiency Act when it comes to which employees qualify as “excepted” or “essential.”

Demi Lovato’s hit song “Made in the USA” recounts how her love for her boyfriend is both amazing and patriotic.  If they had fallen in love in Paris or Acapulco, however, she may be facing an enforcement action by the FTC or a lawsuit in California under Business & Professions Code 17200 for false advertising.

Readers of our blog tend to pay a lot of attention to federal and state product safety developments for obvious reasons.

I used to jokingly tell people that when I moved from design engineering into the law I went from the most productive field in the world to the most counter-productive field. 

This week, the Consumer Product Safety Commission (“CPSC”) will decide whether to hold a full Commission hearing to receive oral comments on a notice of proposed rulemaking on magnet set safety. 

In the ongoing California battle over lawsuits against food companies alleging false and misleading advertising, Plaintiffs claims are judged by the “reasonable consumer” test, in which plaintiffs must show that the public is likely to be deceived by the labeling or advertising.