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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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

CPSC Announces Second Civil Penalty Of Year

Posted in Advertising & Product Risk Management, Product Liability & Torts
CPSC Reaches Civil Penalty Agreement with Viking Range and Middleby Corporation; Firms to Pay $4.65 Million to Resolve Late Reporting Allegations Over Defective Gas Ranges The U.S. Consumer Product Safety Commission (CPSC) has announced a civil penalty settlement with Viking Range, LLC of Greenwood, Mississippi and its parent company, The Middleby Corporation of Elgin, Illinois.… Continue Reading

What Does The Future Hold For NHTSA?

Posted in Advertising & Product Risk Management, Events
More 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… Continue Reading

Ad Fraud and Programmatic Buying Are Eroding Trust in Digital Media

Posted in Advertising & Product Risk Management, Antitrust & Claims Recovery
This 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… Continue Reading

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
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… 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
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… Continue Reading

The President’s Regulatory Agenda and the FTC

Posted in Advertising & Product Risk Management, Product Liability & Torts
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… Continue Reading

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

Posted in Advertising & Product Risk Management
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… Continue Reading

CPSC Acting Chair Buerkle Announces Top Priorities at Product Safety Conference

Posted in Advertising & Product Risk Management, Product Liability & Torts
This past Wednesday, in her first public remarks as Acting Chair of the U.S. Consumer Product Safety Commission (CPSC), Ann Marie Buerkle announced her top three priorities. As our readers know from our previous post, on February 9, then Commissioner Buerkle became Acting Chair of the CPSC after Commissioner Elliot Kaye stepped down as Chairman.… Continue Reading

Commissioner Ann Marie Buerkle Becomes Acting Chair at CPSC

Posted in Advertising & Product Risk Management
The U.S. Consumer Product Safety Commission (CPSC) has a new Acting Chairwoman: Commissioner (and former Congresswoman) Ann Marie Buerkle.  Although no formal announcement has been made, those within the agency have acknowledged that current Chairman Elliot Kaye relinquished the chairmanship yesterday.  Commissioner Buerkle, one of the two Republican members of the Commission and Vice-Chair of… Continue Reading

Failure to Obtain Viewer Consent Leads to $2.2 Million Settlement for Vizio

Posted in Advertising & Product Risk Management, Privacy & Data Protection
Vizio Reaches $2.2 Million Settlement With FTC, New Jersey, For Failing to Obtain Viewer Consent to Track and Sell Viewing Habits to Third Parties Traditionally, advertisers purchase ad inventory during television programs based on basic demographic information regarding viewer attributes. Thus, while ads may reach viewers of a particular gender and age range, those ads… Continue Reading

ICPHSO 2017 Annual Meeting & Training Symposium

Posted in Advertising & Product Risk Management, Events
The International Consumer Product Health and Safety Organization’s 2017 Annual Meeting & Training Symposium is being held February 20-23, 2017 in Orlando, Florida. The theme for this year’s meeting is “Evaluating & Managing Risk.” Cheryl Falvey, former general counsel of the Consumer Product Safety Commission (CPSC) and partner in the Advertising & Product Risk Management Group,… Continue Reading

Join us! 2017 FBA Fashion Law Conference

Posted in Advertising & Product Risk Management, Events
On February 10, 2017, the Federal Bar Association will host a day-long Fashion Law Conference at Parsons School of Design (Starr Foundation Hall in the New School’s University Center) during New York Fashion Week! Please join Crowell & Moring’s Frances Hadfield and Preetha Chakrabarti, as well as a host of other speakers and experts, for our cutting-edge… Continue Reading

Webinar: Consumer Protection 2.0 — C&M’s First 100 Days Series

Posted in Advertising & Product Risk Management, Events
The incoming administration promises big changes to federal consumer protection administration and enforcement. On January 5, 2017, Crowell & Moring’s Advertising & Product Risk Management Group hosted a webinar in which they discussed likely changes on the horizon to the Federal Trade Commission, Federal Communications Commission, and Consumer Financial Protection Bureau. Please click here to access… Continue Reading

Consumer Review Fairness Act of 2016 — Beware of the Negative Online Review

Posted in Advertising & Product Risk Management
Retailers and consumer products companies need to be aware of a new law affecting negative online reviews. On December 14, 2016, President Obama signed the Consumer Review Fairness Act of 2016 (H.R. 5111) into law. The Act voids “non-disparagement clauses” in form contracts designed to prevent consumers from posting negative comments and online reviews of… Continue Reading

The FTC (Finally) Goes Organic

Posted in Advertising & Product Risk Management
In its 2012 revisions to the Green Guides (16 C.F.R. Part 260) on environmental marketing claims, the FTC declined to provide guidance regarding “organic” claims, “either because the FTC lacks a sufficient basis to provide meaningful guidance or wants to avoid proposing guidance that duplicates or contradicts rules or guidance of other agencies.” That self-imposed… Continue Reading