After a slower start in August, the FTC has been busy with actions taken to protect everyday consumers who have been the victims of organized schemes intended to mislead them. The FTC also announced the appointment of a new Director of the Bureau of Competition This and more, after the jump.
Continue Reading FTC Updates (August 7-25, 2023)
Consumer-driven lawsuits that follow a product recall often focus on what the company knew, when it knew it, and how it acted in response. And for companies who are hoping to avoid such a lawsuit, one of the biggest questions is what do they need to disclose to consumers and how far does that obligation reach? Certainly, companies cannot disclose what they did not know, and manufacturers are not required to warn for every conceivable risk, regardless of how remote. A recent class action, Gurkov v. Real Kosher Ice Cream Inc., No. 1:23-cv-06128 (E.D.N.Y Aug. 14, 2023), brings these issues into focus.
Continue Reading Recall Litigation Report: Real Kosher Ice Cream Sued Over Listeria Contamination
In December 2022, the Modernization of Cosmetics Regulation Act (“MoCRA”)—the most significant expansion of the U.S. Food and Drug Administration’s authority to regulate cosmetics in nearly 85 years—was signed into law. Among other things, MoCRA gives the FDA authority to require facility registration and reporting of serious adverse events, impose certain record-keeping obligations, recall cosmetic products, and establish good manufacturing practices. With many of MoCRA’s provisions going into effect at the end of this year, cosmetics companies need to prepare to address these requirements and regulations, which may also have a considerable impact on the litigation landscape.
Crowell’s Product Risk Management team has written two publications to help cosmetics companies prepare for the big changes ahead.
Continue Reading Modernization of Cosmetics Regulation Act (“MoCRA”) White Paper
While the long-awaited update to the Merger Guidelines made the biggest waves in the legal news as of late, the FTC has engaged in several other activities of note, including a crackdown on robocalls, a potential update to COPPA, and cautionary letters to multiple healthcare entities. More on this, after the jump.
Continue Reading FTC Updates (July 10-21, 2023)
On June 29, 2023, the Supreme Court vacated the 10thCircuit’s decision in Abitron Austria GmbH et al. v. Hetronic International Inc. (“Hetronic”). The Supreme Court principally held that the Lanham Act does not have extraterritorial application. As Crowell previously discussed, the Supreme Court sought briefing on Hetronic from the U.S. Solicitor General, signaling an interest in addressing the Tenth Circuit’s decision, the extraterritoriality of the Lanham Act, and the complex circuit split that has at least three distinct tests. Although the Court agreed 9-0 that the lower court’s decision should be vacated, Justice Alito’s majority opinion and Justice Sotomayor’s concurring opinion disagreed on the second step of the extraterritoriality test, specifically regarding whether foreign conduct can have domestic implications. The majority disagreed with both the Tenth Circuit and the Solicitor General, concluding that the Lanham Act cannot apply to foreign defendants’ foreign conduct.
Continue Reading The Unanimous, but Contentiously Fractured, Supreme Court Decision on Extraterritoriality of the Lanham Act
In March 2023, the White House published its National Strategy to Advance Privacy-Preserving Data Sharing and Analytics. Buried in the report was a quiet, but notable, concern related to the possibility of deanonymizing a consumer due to “insufficient disassociability”. See Report, pg. 6. A new wave of class action lawsuits in California—already over three dozen at the time of writing—now seeks to turn a spotlight on these practices, claiming that companies are using “grey market” data to match user patterns with personal identifiable information (PII).
Continue Reading Another Wave of California Privacy Suits—Deanonymization as “Doxing”
On Thursday July 27, the CPSC will host a hybrid forum on lithium-ion battery safety, specifically focusing on fires in e-bikes and other micromobility products as well as the fire risks that may arise with the growing consumer market for other products containing such batteries.
Continue Reading CPSC to Hold Forum on Lithium-Ion Battery Safety and Micromobility Products
It seems most everyone has been closely monitoring Taco Bell’s cancellation proceedings directed to federal trademark registrations covering the TACO TUESDAY trademark. On July 15, 2023, one of the registrants, Spicy Seasonings, LLC, withdrew its registration after decades of ownership, supporting Taco Bell’s allegations that the phrase is generic and therefore not protectable as a trademark.
Continue Reading Something to Taco-Bout: Taco Bell Takes on TACO TUESDAY Trademark Registrations
The FTC has remained active this summer, concluding June with two major notices of proposed rulemaking. One related to the Premerger Notification Rule from the Bureau of Competition and the other related to the Use of Consumer Reviews and Testimonials from the Bureau of Consumer Protection. These stories and more regarding specific matter updates ranging from “Made in USA” advertising to deceptive Delta-8 THC advertising after the jump.
Continue Reading FTC Updates (June 27 – July 7, 2023)
Products are commonly recalled due to a hazard (i.e., a risk of harm), even where large swaths of consumers have never had a problem with the products they purchased. When those consumers then file suit, they often seek to recover economic harm based on the “benefit of the bargain” theory—because the recalled products that they previously purchased are now worth less than what they paid for them. Where a consumer does experience the hazard (i.e., suffers personal injury or property damage) and subsequently files suit, that suit often seeks to recover not just economic harm but also for personal injury or property damage. Regardless of the nature of the harm, the alleged injury naturally precedes any recall of the product.
Continue Reading Recall Litigation Report: Consumer Lawsuit Alleges Electrolux Dehumidifier Caused Church Fire Years After Recall