Earlier this week, President Biden signed the Safe Sleep for Babies Act into law. The new statute does two things. First, it bans infant inclined sleepers with an inclined sleep surface greater than ten degrees that are intended for infants up to age one. Second, it bans crib bumpers. When the Act takes effect in November, both products will be considered “banned hazardous products” under Section 8 of the Consumer Product Safety Act.

These infant products have also been the subject of recent rulemaking activity by the U.S. Consumer Product Safety Commission (CPSC). This sets up at least one potential conflict of law. Where the Safe Sleep for Babies Act bans infant inclined sleepers intended for infants up to age one, the CPSC rule affected only sleepers intended for infants up to 5 months old. Continue Reading President Biden Signs Safe Sleep Act, Banning Infant Inclined Sleepers and Crib Bumpers

On May 12, 2022, New York City Mayor Eric Adams signed into law the Amended New York City Pay Transparency Law, Int. 134-A, extending the effective date of that statute from May 15, 2022 to November 1, 2022.  The pay transparency law (“Law”) requires New York City employers and employment agencies with four or more employees, or employees or agents thereof (“Covered Employers”), to include compensation information in postings for new employment opportunities, internal promotions and transfers that they choose to post. The amendments clarify that (1) positions “that cannot or will not be performed, at least in part, in” New York City are exempt from the pay posting requirement; (2) either annual salary or hourly wage information must be disclosed in the posting; (3) a Covered Employer has a 30-day opportunity to cure, with no penalty, in response to a first administrative complaint of non-compliance; and (4) only current employees have a private right of action against their employers. The New York City Commission on Human Rights (“Commission”) recently issued updated guidance to assist Covered Employers with the recent amendments. Continue Reading Effective Date of the New York City Pay Transparency Law Extended to November 1, 2022

The FTC, in partnership with the DOJ, filed a complaint against a Voice over Internet Protocol service provider for the transmission of millions of allegedly illegal prerecorded telemarketing robocalls. The company and its owner are now facing injunctive and monetary penalties. The Commission also announced its intentions to update the Telemarketing Sales Rule with a notice and advance notice of proposed rulemaking. More on these stories after the jump. Continue Reading FTC Updates (April 25-April 29, 2022)

This week, the FTC cracked down on day-trading investment advertising and Chair Khan discussed the agency’s enforcement priorities, including the proliferation of non-compete agreements. The Commission tentatively announced it will discuss expansive changes to the Telemarketing Sales Rule at its April 28 Open Commission Meeting. These stories and more after the jump. Continue Reading FTC Updates (April 18-22, 2022)

For the first time, the FTC used its new Made in USA rule to go after a battery manufacturer. The rule, enacted last summer, gives the agency power to seek civil penalties, injunctive relief, and other remedies against companies who use a “Made in USA” label in a misleading way.  The FTC also received a request from the House of Representatives to look into a NFL team’s potentially illegal business practices, and the agency attempted to put a positive spin on a recent DOJ criminal wage-fixing case. These stories and more after the jump. Continue Reading FTC Updates (April 11-15, 2022)

This week, the FTC announced that it reached settlements with a state real estate board and an international online business coaching organization. It also announced that millions of dollars in refunds would be made available following a win at trial against a private website attempting to assist consumers with government services. The conduct ranges from allegedly anticompetitive behaviors in violation of Section 5 of the FTC Act as well as false and deceptive marketing and advertising practices. These stories and more after the jump. Continue Reading FTC Updates (April 1-8, 2022)

Class actions following a product recall often focus on what the company allegedly knew before its products were taken off the market. But this is not always the case. A company can also come under fire for its actions after the recall and, specifically, what recourse it offers to consumers of recalled products.

On October 5, 2021, the U.S. Food and Drug Administration (“FDA”) alerted the public of a manufacturing issue with certain lots of Ellume USA LLC’s (“Ellume”) COVID-19 Home Tests that had could lead to false positive results, and several weeks later, the FDA announced a Class I recall of these tests based on the higher-than-acceptable false positive test result. When it comes to COVID-19, a false positive could lead to delayed diagnosis and treatment of the actual cause of illness; further spread of COVID 19 when presumed positive people are grouped based on false test results; unnecessary COVID-19 treatment from health care providers, such as antiviral treatment, convalescent plasma, or monoclonal antibody treatment, which can result in side effects; disregard for the recommended precautions against COVID-19, including vaccination; and isolation, monitoring household or close contacts for symptoms, limiting contact with family or friends, and missing school or work. Continue Reading Recall Litigation Report: Consumers Bring Class Action Lawsuit Against Ellume Refusing to Refund Recalled COVID-19 Home Tests

The FTC kicked off the week with a fresh batch of warning letters and followed this up with a pair of complaints related to deceptive marketing. Just in time for the busiest part of tax season, the FTC has filed administrative and federal complaints against Intuit, manufacturers of the popular TurboTax software. The Commission also entered into a record-breaking settlement with a multistate car dealer over alleged deceptive sales tactics, some of which were racially discriminatory. Finally, action in the Senate this week indicates that the long-vacant fifth Commissioner position may finally fill. These stories and more after the jump. Continue Reading FTC Updates (March 28 – April 1, 2022)

When a product is recalled, class action lawsuits are not the only threat. Recalled products can also give rise to droves of individual actions. This is the case for Exactech, Inc., a manufacturer of implants, instruments, and technologies for joint replacement.

Following an initial pause in elective procedures at the start of the COVID-19 pandemic, the number of hip arthroplasty surgeries has grown at a steady pace. These procedures commonly use acetabular liners to increase the stability of the total hip arthroplasty. Now, Exactech, a manufacturer of acetabular liners, is under fire nine months after the U.S. Food and Drug Administration (“FDA”) announced a Class II recall of the Exactech Connexion GXL acetabular polyethylene liner in June 2021. A Class II recall involves situations in which consumers may experience temporary or medically reversible health consequences or the likelihood of serious adverse health consequences is remote. Continue Reading Recall Litigation Report: Exactech Joint Replacement Products

We recently reported on the Federal Trade Commission’s (“FTC”) increased enforcement against review curation policies that disproportionately restrict or remove negative reviews. Now, the Consumer Financial Protection Bureau (“CFPB”) has issued a Bulletin that makes clear that the suppression or manipulation of consumer reviews posted about financial products and services is an unfair and deceptive act or practice. The CFPB’s Bulletin drew from recent FTC guidance and enforcement activity as well as the Consumer Review Fairness Act of 2016 and stated that conduct such as (1) deceptively posting fake reviews that appear independent, (2) suppressing or manipulating reviews such as by limiting the posting of negative reviews, or (3) imposing contractual ‘gag’ clauses on consumers in form contracts that prohibit honest reviews is generally a violation of the Consumer Financial Protection Act. Continue Reading CFPB Announces Policy Against Consumer Review Suppression