Retail & Consumer Products Law Observer

Retail & Consumer Products Law Observer

Legal Insight for the Retail and Consumer Products Industry

What Does The Future Hold For NHTSA?

Posted in Advertising & Product Risk Management, Events

Cars on highwayMore than two months after President Donald Trump’s inauguration, the automotive industry continues to face substantial uncertainty regarding the direction and priorities of the National Highway Traffic Safety Administration (NHTSA) over the next few years. For now, we can only guess.  The new Transportation Secretary, Elaine Chao, was confirmed January 31.  She takes over a NHTSA that had been working hard to keep up with emerging technologies – while acting increasingly muscular in its fines and other punishments under the prior administration.

For some safety agencies, it is much easier to read the tea leaves under the new administration. For example, at the Consumer Product Safety Commission, for example, we know that there is a new Republican Acting Chair (Ann Marie Buerkle), and that the five commissioners will remain 3-2 in favor of Democrats until at least October 2017 when Democratic Commissioner Marietta Robinson’s term on the Commission expires.  See prior article here.  And, following Acting Chair Buerkle’s public remarks last month at the annual conference of the International Consumer Product Health and Safety Organization (ICPHSO), we know that her top three priorities include: (1) collaborating with all product safety stakeholders; (2) taking a balanced and reasonable approach to regulation; and (3) expanding product safety education and awareness for consumers.  See prior article here.

Continue Reading

Ad Fraud and Programmatic Buying Are Eroding Trust in Digital Media

Posted in Advertising & Product Risk Management, Antitrust & Claims Recovery

Kate Smartphone KeyboardThis year, digital media spending is expected to outstrip spending on traditional media, such as television and print. Advertisers, lured by the promise of precise targeting, better ability to measure return on investment, and changing consumer media consumption patterns, have poured money into digital at an almost exponential rate. And, while there are studies (largely by digital media agencies) documenting the effectiveness of such advertising, there remain major questions regarding the effectiveness and efficiency of such spending.

Continue Reading

Join us for a webinar… The Safety Agencies in Transition – What to Expect at FDA, CPSC and NHTSA in the First 100 Days

Posted in Events

First 100 Days LogoThursday, March 30, 2017 1:00 – 2:00 p.m. Eastern

Aggressive enforcement, massive recalls and proactive safety agendas left an indelible impression on the product safety world under the Obama administration. Product safety is no longer a bipartisan affair. But what will the Trump administration mean for your regulatory compliance programs? What changes will we see and how will they affect your safety program?

Join us for a roundtable discussion of what the regulated community can expect under the new administration at the Food & Drug Administration, Consumer Product Safety Commission and the National Highway Safety Administration. We’ll help you to forecast where policy shifts on by focusing on topical discussions of emerging products such as autonomous cars, drones, miniaturized cameras and e-cigarettes, and emerging issues including fire and lithium ion batteries, as well as hacking concerns on interconnected products.

Click here to register for this webinar, or click here to view the event on Crowell.com.

Key topics:

  • Taking stock: Where are we now? What happens before new officials at the FDA, NHTSA, CPSC and DOJ are nominated and confirmed?
  • Where and how will the Trump administration affect current agency priorities?
  • Can autonomous vehicle technology and interconnected products thrive in the next four years? Any advantages or hurdles?
  • Will we continue to see aggressive enforcement agendas at the agencies and how will the DOJ respond? How litigious will these agencies be in the coming months and years?
  • What is the future of safety policy and rulemaking? Can these agencies met the EO requiring the repeal of two rules for every one promulgated? And what impact will the federal hiring freeze have on safety programs?

Speakers:

A New Twist on a Familiar Theme: NJ Lawsuit Targets Retailer’s Savings Claims, Seeking Damages Under Once Obscure Statute

Posted in Advertising & Product Risk Management, Consumer Class Action
Sale Sign 3

Daniel O’Neill (Flickr)

There’s a new tool for deceptive pricing class actions challenging “up to __%” savings promotional messaging:  A new lawsuit filed in New Jersey alleges that the clothing retailer’s “up to _% off” promotional messaging violates New Jersey’s consumer protection laws. The plaintiff sued Jos. A. Bank under the New Jersey Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), N.J. Stat. § 56:12-15. This once-forgotten statute has recently been in the limelight, invoked in numerous class actions due to its generous civil penalties provision providing “not less than $100.00 or for actual damages, or both” at the choice of the consumer, plus attorney’s fees. See N.J. Stat § 56:12-17.

Continue Reading

A-F-F-I-R-M-E-D! The Supreme Court Upholds Copyright Protection for Cheerleading Uniform Designs

Posted in IP/Brand Protection

UPDATE to our September 2015 post

On March 22, 2017, a 6-2 Supreme Court found Varsity Brands’ designs on cheerleading uniforms to be copyrightable, holding that “an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.” See Star Athletica, LLC. v. Varsity Brands, Inc., 580 U.S. __ (2017) (No. 15-866), Op. at 1-2.  In doing so, the Court affirmed the Sixth’s Circuit decision below.

Continue Reading

Safety Agencies after Trump’s “2 for 1” Executive Order: What it May Mean for Regulating the Safety of IoT and other Emerging Technologies

Posted in Advertising & Product Risk Management

First 100 Days Logo

Historically, as administrations change at the safety agencies, new priorities and shifting judgments on risk-based hazard assessment drive regulatory burdens up or down. The effect of President Trump’s executive order requiring the repeal of two rules for every one promulgated is yet to be seen when it comes to rulemaking at consumer facing safety agencies such as the National Highway Traffic Safety Administration, Food and Drug Administration, and Consumer Product Safety Commission.

The CPSC, as an independent agency, could take the position that the E.O. simply does not apply to them.  The White House agrees.  But the reality is that very few $100 million rules have been issued by the CPSC over the entire life of the agency.  That is because its enabling statute favors voluntary industry standards over mandatory rules.  Indeed, many of the CPSC rules affecting product performance have been mandated by Congress and could not be repealed by the agency absent an act of Congress.  Still others may require some APA process before they can be legally repealed or changed.

Continue Reading

The President’s Regulatory Agenda and the FTC

Posted in Advertising & Product Risk Management, Product Liability & Torts
Federal Trade Commission

Federal Trade Commission

Presidential advisor Steve Bannon famously told the Conservative Political Action Conference (CPAC) that the Trump Administration seeks to “deconstruct” the regulatory state. The President has issued several Executive Orders (EOs) on regulations designed to implement this policy, including the “two for one” EO, an EO on enforcing the regulatory agenda, and an EO on reorganizing the executive branch.  The three orders collectively promote a policy of deregulation and wholesale elimination of administrative functions deemed overly burdensome to business, redundant, or outdated.

This week, the White House followed through on that agenda by publishing a proposed budget that would impose sweeping budget reductions on almost every federal agency, with the exception of the Departments of Defense and Homeland Security.

The key consumer protection agencies—the Federal Trade Commission, Federal Communications Commission, and Consumer Financial Protection Bureau—are not directly subject to any of these EOs or addressed in the President’s Budget Request. But that does not mean these agencies are in the clear in terms of budget-cutting or deregulatory efforts.  Rather, it seems more likely that the administration is preoccupied with bigger fish at the moment; in the meantime, they are treading carefully.  Which raises the question:  what else is in store for these agencies once they regain the Trump Administration’s focus?

Continue Reading

Update: Class Action Reform Bill Passes House 220-201

Posted in Consumer Class Action
© iStock

© iStock

Last month, our colleague Joshua Foust analyzed the then-newly introduced Fairness in Class Action Litigation Act of 2017.  The bill, sponsored by House Judiciary Chairman Bob Goodlatte (R-VA), amends procedures used in federal court class action and mass tort litigation.  Last week, on March 9, just one month after Chairman Goodlatte (R-VA) introduced the bill, the full House of Representatives passed the bill by a vote of 220-201.  The legislation will now be considered by the Senate.   

Now that the bill has passed the House, we have drafted an alert providing additional analysis. Click here to read the alert on Crowell.com or read below.

The U.S. House Sets Out To Reform Class and Mass Actions

Continue Reading

Webinar: The Safety Agencies in Transition – What to Expect at FDA, CPSC and NHTSA in the First 100 Days

Posted in Events

First 100 Days LogoJoin Us for a Webinar – Thursday, March 30, 2017 1:00 – 2:00 p.m. Eastern

Aggressive enforcement, massive recalls and proactive safety agendas left an indelible impression on the product safety world under the Obama administration. Product safety is no longer a bipartisan affair. But what will the Trump administration mean for your regulatory compliance programs? What changes will we see and how will they affect your safety program?

Join us for a roundtable discussion of what the regulated community can expect under the new administration at the Food & Drug Administration, Consumer Product Safety Commission and the National Highway Safety Administration. We’ll help you to forecast where policy shifts on by focusing on topical discussions of emerging products such as autonomous cars, drones, miniaturized cameras and e-cigarettes, and emerging issues including fire and lithium ion batteries, as well as hacking concerns on interconnected products.

Please click here to register for this webinar, or click here to view the event on Crowell.com.

Key topics to be discussed: Continue Reading

Target Takes Aim at Chemicals in Consumer Goods; Announces New Strategy to Promote Safer Products

Posted in Advertising & Product Risk Management

Photo Credit: Mike Mozart (Flickr)

Late last month, Target announced a new strategy to remove certain chemicals from consumer products sold in its many stores.  The approach focuses on increased transparency, proactive chemical management across the supply chain, and innovation of safer alternatives.  As a part of this new chemicals strategy, touted by many as the most comprehensive of its kind for a retailer, Target has pledged in its first set of announced goals to:

  • list all ingredients in all owned and national brand products by 2020;
  • formulate beauty, baby care, personal care, and household products without phthalates, propylparaben, butyl-paraben, formaldehyde, formaldehyde-donors, and Nonylphenol Ethoxylates (NPEs) by 2020;
  • remove added Perfluorinated Chemicals (PFCs) and added flame retardants from textile products by 2022; and
  • invest up to $5 million in green chemistry innovation by 2022.

Continue Reading