Retail & Consumer Products Law Observer

Retail & Consumer Products Law Observer

Legal Insight for the Retail and Consumer Products Industry

Category Archives: Advertising & Product Risk Management

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ROSCA Enforcement Ahead: FTC Settles with AdoreMe for $1.38 Million

Posted in Advertising & Product Risk Management
Subscription services for everything from food delivery to beauty products to exercise gear have grown exponentially in the past five years. Such services require consumers to enroll in a program to purchase goods on a consistent basis. They typically automatically renew, often on a monthly basis, and require customers wishing to cancel to take affirmative… Continue Reading

“Do Not Resuscitate”: Lessons for Advertisers

Posted in Advertising & Product Risk Management
The DNR Tattoo Last week, the Associated Press reported the fascinating story of an unconscious man admitted in acute distress to Miami’s Jackson Memorial Hospital. The words “Do Not Resuscitate” were tattooed across his upper chest, where one would see them before engaging in chest compressions. He carried no identification, so the medical staff could… Continue Reading

Subverting Democracy, Advertising, and the Economy Through Bots

Posted in Advertising & Product Risk Management
The word “bot” is a double-entendre. It refers both to the larval stage of the bot-fly, a rather gruesome internal parasite (warning, link not for the squeamish) and to a software application that runs automated scripts on the internet in highly repetitive fashion—also with parasitic effects. Internet bots can be programmed for good or evil.… Continue Reading

Quincy Biosciences: What the decision means for advertising of health claims, and what it means to the FTC

Posted in Advertising & Product Risk Management
You may have seen the commercial on late night television. A glowing image of a human brain appears (along with a disclosure stating “dramatization”), with flashing lights pulsing through a crisscrossed mesh, depicting nerves. The voiceover intones, “Your brain is an amazing thing. But as you get older, it begins to change, causing a lack… Continue Reading

Soda Stays Safe in San Francisco

Posted in Advertising & Product Risk Management, Product Liability & Torts
Ninth Circuit Blocks Sweet Drink Warning Labels Pending Free Speech Lawsuit The Ninth Circuit dealt a blow to the war on sugar last month, calling the warning labels a San Francisco ordinance would require on sweet drinks “deceptive” and blocking the mandate on free speech grounds. As we have discussed before, cities and counties across… Continue Reading

Court Dismisses FTC’s Unfairness Claims Against D-Link

Posted in Advertising & Product Risk Management
Earlier this month, the Northern District of California dismissed FTC’s unfairness claims against D-Link, a manufacturer of routers and IP cameras, while allowing most of FTC’s claims rooted in deception to survive, suggesting that traditional false advertising actions may be FTC’s most effective means of addressing suspect data security practices. Further, the Northern District of… Continue Reading

FTC Announces First Enforcement Action Against Social Media Influencers and Updates FAQs Rejecting Common Disclosure Practices

Posted in Advertising & Product Risk Management
The FTC is closely watching influencers to remind them to clearly disclose material connections to brands. In June 2017, the Commission settled with a trampoline manufacturer for relying on misleading endorsements and, in March, the Commission sent more than 90 letters to influencers and brands to remind them to clearly disclose relationships. The FTC has… Continue Reading

CPSC Targets Retailer Home Depot in Rare Sale of Recalled Goods Civil Penalty

Posted in Advertising & Product Risk Management
Last week, the U.S. Consumer Product Safety Commission announced that Home Depot U.S.A., Inc. has entered into a settlement agreement with the agency to resolve allegations that the retailer knowingly sold and distributed recalled consumer products over a four year period. The Company will pay a civil penalty of $5.7 million. This penalty is significant… Continue Reading

Dueling Interests at CPSC and FDA “Deem” E-cigarette Battery Safety a Priority

Posted in Advertising & Product Risk Management
The regulation of e-cigarettes and other electronic nicotine delivery systems (“ENDS”) presents complex regulatory and scientific challenges. Two key federal agencies with product safety mandates and overlapping jurisdiction – the Consumer Product Safety Commission and the Food and Drug Administration – have turned their attention onto the specific area of e-cigarette battery-related fires and explosions… Continue Reading

President Trump Nominates CPSC Acting Chair Buerkle to Serve as Permanent Chair

Posted in Advertising & Product Risk Management
On Monday, President Trump nominated Ann Marie Buerkle, who has served as Acting Chair of the U.S. Consumer Product Safety Commission since February 9, 2017, to serve as permanent Chair of the Commission.  The appointment is for a term of seven years beginning on October 27, 2018 when her current term expires.  Acting Chair Buerkle’s… Continue Reading

FTC Focusing on Privacy Risks of Interconnected Toys

Posted in Advertising & Product Risk Management, Product Liability & Torts
Fuzzy talking toys are no longer the annoying, yet benign Christmas gifts they used to be. Many of today’s toys, like refrigerators, cars, and televisions, are “smart,” and may come gift-wrapped with all of the emerging cybersecurity risks the internet has to offer. And as various government agencies grapple with the regulation and enforcement of… Continue Reading

This Week in Digital Advertising: Fake News, Bots, and Implications for Digital Trust

Posted in Advertising & Product Risk Management
Last December, authorities arrested Edgar Welch, a 28-year old man from Salisbury, North Carolina, who had entered Comet Ping Pong, a Washington, D.C. pizza parlor, armed with a shot gun. Mr. Welch reportedly came to Comet Ping Pong on a self-described mission to free child sex slaves that he believed might be imprisoned there at… Continue Reading

Trampoline Manufacturer Can’t Bounce Away From FTC Trouble

Posted in Advertising & Product Risk Management, Product Liability & Torts
FTC Moves Ahead Enforcing Endorsement Cases A few months ago, acting Federal Trade Commission Chairwoman Olhausen stated that the FTC should shift focus to cases of actual harm, leaving many to wonder whether FTC would still actively enforce endorsement cases. However, in April, the FTC sent out ninety letters to brand influencers and marketers reminding… Continue Reading

CPSC Hears Rare Oral Argument in Zen Magnets Recall Litigation

Posted in Advertising & Product Risk Management, Product Liability & Torts
On June 7, the U.S. Consumer Product Safety Commission provided administrative law followers a fascinating case study. For the first time in two decades, the CPSC’s five Commissioners heard an appeal put on by CPSC staff in administrative litigation. In its appeal, the staff seeks to overturn an administrative law judge’s opinion finding that Zen… Continue Reading

Join Us: ABA Food & Supplements 7th Annual Workshop

Posted in Advertising & Product Risk Management, Events, Product Liability & Torts
2017 continues to be the year of the Food Safety Modernization Act, as the U.S. Food and Drug Administration, having completed its roll-out of the major rules implementing this land-mark food safety legislation, moves in earnest with inspections to check on compliance. To help manufacturers prepare for this and other issues confronting the food industry,… Continue Reading

Trolls and Tall Tales: How to Protect Your Company’s Online Reputation

Posted in Advertising & Product Risk Management
In today’s social media and internet focused world, tracking online reviews and commentary from consumers is essential for product manufacturers and retailers. Savvy online participation can provide companies with important quality feedback and bolster customer relations when consumer concerns are handled quickly and sensitively. But even companies are not immune to cyber trolls. What happens when an… Continue Reading

Long Live the King (Bio)

Posted in Advertising & Product Risk Management
Ninth Circuit Follows King Bio Decision in Confirming Private Plaintiffs May Not Challenge “Lack of Substantiation” Under California Law To view the full version of this article, visit the latest version of our Recent Happenings in Advertising & Product Risk Management newsletter. When it comes to prosecuting false advertising, what is the appropriate division of… Continue Reading

The Devil is in the Details: Recordkeeping a Central Focus in FSMA Inspections

Posted in Advertising & Product Risk Management, Product Liability & Torts
The Food Safety Modernization Act, which was signed into law by President Obama on January 4, 2011, promised sweeping reform of food safety practices from farm to fork, and shifted FDA’s regulatory posture from reacting to food contamination to proactively preventing it. While the Trump administration has vowed to eliminate two regulations for every new… Continue Reading

New Private Right of Action in Canada for False or Misleading Electronic Advertising

Posted in Advertising & Product Risk Management
This alert has been prepared in collaboration with Canada’s Fasken Martineau law firm. Mr. Di Domenico is a partner and regional chair of the firm’s Antitrust/Competition & Marketing Group in Toronto. Chris Cole is Co-Chair of Crowell’s Advertising & Product Risk Management Group in Washington, D.C. In less than three months, Canada will introduce a private… Continue Reading

CPSC Withdraws Material Misrepresentation Claim against Michaels Stores in Shattered Vases Case

Posted in Advertising & Product Risk Management
Earlier this month, the Consumer Product Safety Commission in tandem with the Department of Justice withdrew its “material misrepresentation” claim in its ongoing lawsuit against arts and crafts retailer Michaels Stores. The Government had alleged, inter alia, that Michaels made a material misrepresentation to the agency in its Section 15(b) Report for certain glass vases… Continue Reading