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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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

Would “Juice” by Any Other Name Taste as Sweet? Court Cites FDA Guidance in Resuscitating “ECJ” Class Action

Posted in Advertising & Product Risk Management, Consumer Class Action
In a long-awaited pronouncement, on May 25, 2016 the Food and Drug Administration issued its final guidance recommending that food and beverage manufacturers discontinue their use of the term “evaporated cane juice” (ECJ) to refer to sweeteners extracted from sugar cane. As the agency explained, “the use of ‘juice’ in the name of a product… Continue Reading

Beauty with a Side of Mercury?

Posted in Advertising & Product Risk Management, Consumer Class Action, Product Liability & Torts, Torts
On July 26, 2016, FDA issued an updated warning on beauty products, warning consumers to avoid certain “skin creams, beauty and antiseptic soaps, and lotions,” particularly those boasting “anti-aging” or “skin lightening” benefits, as potentially containing mercury.  While the dangers of mercury exposure are well-known, mercury’s ubiquity in certain beauty products is not.  Products that… Continue Reading

A New Federal GMO Labeling Standard in the Works?

Posted in Advertising & Product Risk Management, Consumer Class Action
One week before the Vermont GMO labeling law will take effect, a bipartisan bill requiring mandatory labeling for products containing genetically modified ingredients has been agreed to by Senate AG committee ranking member Debbie Stabenow (D-MI) and Committee Chairman Pat Roberts (R-KS).  The bill, which would require the Secretary of Agriculture to establish a national… Continue Reading

The FDA Unveils an Updated Nutrition Facts Label

Posted in Advertising & Product Risk Management
On Friday, May 20, 2016, the U.S. Food and Drug Administration (FDA) announced a “refreshed” Nutrition Facts label, which, except for the addition of trans-fats in 2006, had gone largely untouched since 1994. Consumers will not only notice an updated design, which makes the label larger and bolder, but there are more substantive changes that,… Continue Reading

Keeping It “Real”: Supreme Court Holds That Consumers Must Allege Real Harm

Posted in Advertising & Product Risk Management, Consumer Class Action, Privacy & Data Protection
In Spokeo, Inc. v. Robins, the U.S. Supreme Court has issued yet another narrow decision—apparently designed to avoid a 4-4 deadlock—in another hard-fought, potentially divisive case on its docket this term. On May 16, 2016, the Court held 6-2 that the Ninth Circuit had erred in not asking whether plaintiff Robins had alleged that he… Continue Reading

Ninth Circuit Refuses to Cut Plaintiff Slack in Ebner v. Fresh, Inc.

Posted in Advertising & Product Risk Management, Consumer Class Action
Companies from Procter & Gamble and Unilever to Mars and Starbucks have recently been hit with class actions slightly different from the false advertising claims we have gotten used to seeing. Now, instead of just alleging that companies are deceiving consumers through the language used in their advertising claims, consumer plaintiffs are expanding their allegations… Continue Reading

Won’t Get Fooled Again: Recent Bigelow Decision Raises Roadblock to Consumer Plaintiffs Seeking Injunctions in False Advertising Class Actions

Posted in Advertising & Product Risk Management, Consumer Class Action
Federal judges often find themselves confronting a familiar conundrum in consumer class actions that challenge misleading practices. The typical plaintiff will file a suit after somehow discovering that one of the defendant’s advertisements, product labels, or other representations is “false” or “misleading.” The self-nominated “representative” asks the court to certify a class of all consumers… Continue Reading

Join C&M and other Industry Experts for an Advertising for Associations Seminar

Posted in Advertising & Product Risk Management
On May 4, 2016, Crowell & Moring LLP will host a complimentary seminar on Advertising for Associations in their Washington, DC office. This afternoon program will focus on key issues affecting advertising communications and public relations strategies of major trade associations. It brings together leading trade association executives and lawyers, public relations specialists, and ad… Continue Reading

Heading Off the Pick-Off: Ninth Circuit Slams Door on Use of Rule 68 “Deposits” to Moot Class Actions

Posted in Advertising & Product Risk Management, Consumer Class Action
Handed down January 20, 2016, the Supreme Court’s decision in Campbell-Ewald Co. v. Gomez was a major blow to what class action practitioners call the pick-off strategy: using a Rule 68 offer of complete relief to “pick off” a putative class representative, thereby mooting the class action suit. In Campbell-Ewald the Court rejected this tactic… Continue Reading

The World on a Chocolate Wrapper: California District Court Clarifies Companies’ Duty to Disclose Human Rights Abuses in Supply Chains

Posted in Advertising & Product Risk Management, Consumer Class Action
The continuing use of child and forced labor in parts of the world is, without question, a humanitarian tragedy. Less clear, though, is whether consumer class actions in the United States are a suitable tool for addressing this problem. Should retailers and manufacturers be subject to suit under consumer protection statutes if they fail to… Continue Reading

Down Goes Tyson: What Does Tyson Foods v. Bouaphakeo Mean for Consumer Class Actions?

Posted in Advertising & Product Risk Management, Consumer Class Action
Last Tuesday, the U.S. Supreme Court handed down its keenly anticipated decision in Tyson Foods, Inc. v. Bouaphakeo, another in its recent run of class action cases. Siding 6-2 with the plaintiffs-respondents, the majority held that the employees at one Tyson pork processing plant could extrapolate how much overtime class members had worked from statistical… Continue Reading

CPSC Issues $15.45 Million Penalty at the Statutory Maximum

Posted in Advertising & Product Risk Management
The CPSC announced a civil penalty today against Gree Electrical Appliances that hit the statutory maximum of $15.45 million. CPSC Chairman Elliot Kaye had previously expressed his desire at a recent trade conference for the Commission to hit a “double digit” million dollar civil penalty and to pursue more criminal charges. Today’s announcement achieved one of those… Continue Reading

Join C&M and other legal experts for the FBA’s Fashion Law Conference

Posted in Advertising & Product Risk Management, Antitrust & Claims Recovery, Consumer Class Action, International Trade, IP/Brand Protection, Privacy & Data Protection
On February 12, 2016, 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 stunning new University Center) on the last day of New York Fashion Week! Speakers include in-house counsel from The Estee Lauder Companies, Inc., Tiffany & Co., New York &… Continue Reading

Turf Wars: The Attack On Crumb Rubber Synthetic Turf

Posted in Advertising & Product Risk Management, Environment & Natural Resources, Product Liability & Torts
Many universities and local governments have installed synthetic turf made with “crumb rubber” – ground up tires – on playing fields and playgrounds in recent years to obtain the advantages of all-season use and lower maintenance costs. In recent months, however, the media and a growing group of critics contend that the crumb rubber used… Continue Reading

Hello Barbie (and Lawsuit)

Posted in Advertising & Product Risk Management, Consumer Class Action, Privacy & Data Protection, Torts
Just in time for the holiday shopping rush, “Hello Barbie” has hit the shelves.  This Barbie actually talks back to its playmates and is the latest high-tech version of the iconic doll. The secret to this innovation? The Internet. Toymaker Mattel partnered with software firm ToyTalk to equip the doll with a microphone, voice-recognition, and… Continue Reading

California Supreme Court Rules That Federal Law Does Not Preempt State-Law Claims Over Truthfulness of “Organic” Labels

Posted in Advertising & Product Risk Management, Product Liability & Torts
On December 3, 2015 in a unanimous decision, the California Supreme Court ruled that California state law claims for harms arising out of allegedly false “organic” labeling were not preempted by the federal Organic Foods Production Act of 1990.  With that decision, the Court reversed the lower court’s dismissal of Plaintiffs’ claims on the pleadings. … Continue Reading

Learn What Hot Holiday Gift May Come with Registration Redtape: ABA Webinar on Drone Safety, Privacy and Security

Posted in Advertising & Product Risk Management
Join our colleague, Kate Growley, today when she moderates a panel on the current regulatory issues with small unmanned aerial vehicles (aka UAS or drones): ABA Registration Link. The “it” holiday product this year brings a host of safety, security and privacy issues equally relevant to lawyers and non-lawyers. Citing sales estimates of 1 million drones,… Continue Reading

Make a Deal Like Mike – Michael Jordan Settles Two Right of Publicity Lawsuits

Posted in Advertising & Product Risk Management, IP/Brand Protection
Michael Jordan has settled two high-profile right of publicity lawsuits with two now-defunct grocery chains – Jewel Food Stores and Dominick’s Finer Foods.  In August, a jury awarded Jordan $8.9 million after a federal judge determined that Dominick’s violated Jordan’s rights under the Illinois Right of Publicity Act.  Jewel and Jordan were scheduled to start… Continue Reading

Microbead Bans Expanding

Posted in Advertising & Product Risk Management, Environment & Natural Resources
The number of states who have banned the use of microbeads in personal care products is growing, with California being the most recent to join the trend.  California and New Jersey laws expand their bans to include biodegradable microbeads; Johnson & Johnson and Proctor & Gamble both opposed the California law.  The Personal Care Products Council,… Continue Reading

Don’t Put a Sock In It: FTC Says “Let Customers Complain”

Posted in Advertising & Product Risk Management
Businesses that try to prevent disgruntled customers from sharing their experiences with other consumers may have to answer to the FTC for engaging in an unfair practice. In Roca Labs, the FTC filed a complaint against marketers of purported weight loss products who “spent millions of dollars … to serve online advertisements.”  Consumers who went… Continue Reading

WEBINAR: The Fusion of Fashion & Technology (Oct. 20, 2-3 pm ET)

Posted in Advertising & Product Risk Management, Events, International Trade, IP/Brand Protection
Crowell & Moring is partnering with the United States Fashion Industry Association (USFIA) for an October 20 webinar covering the emerging legal landscape for the fashion industry in the digital media age. The webinar will run from 2:00 to 3:00 pm ET and will explore how to: Best protect your intellectual property rights as fashion… Continue Reading