Cocoa Beans

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 disclose the difficult-to-quantify risk that their suppliers—or their suppliers’ suppliers—may use forced labor? Do these companies have a legal duty to disclose such risks directly on their products’ labels and packages? And if so, what is the limiting principle here—what types of information must a company disclose on the limited “real estate” of its products’ packaging, and which can it safely omit?

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

Gillette Foust Tyson Image

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 evidence estimating how long it took an “average” employee to “don and doff” protective gear. In other words, the Court agreed that the plaintiffs could use inferences drawn from “representative sampling” methods to smooth over employee-specific differences—even though such variations directly impacted whether Tyson was liable to any given class member for overtime pay.

Tyson Foods begs to be read in dialogue with the Court’s landmark decision in Wal-Mart Stores v. Dukes, in which the late Justice Antonin Scalia criticized the use of representative sampling in class actions at the expense of a defendant’s right to litigate individualized defenses to liability. Does the Tyson Foods holding mark a departure from recent precedent, including Wal-Mart’s critique of “Trial by Formula”? And could this ruling have broader implications for class actions in other areas of the law, particularly consumer fraud and false advertising cases?

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

FLC Pic

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

Kate Smartphone Keyboard

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 cloud-based intelligence to give Barbie “call-and-respond” functionality. (Think Siri talking through Barbie.) Hello Barbie is yet another example
Continue Reading Hello Barbie (and Lawsuit)

Whether to label foods as either containing genetically-modified organisms (GMOs) or being GMO-free is getting more complicated. On the one hand, Vermont’s GMO-labeling law, which has thus far survived legal challenge, will require by next July that all foods for sale at retail in the state bear labeling regarding GMO content. On the other hand, many retailers and food producers seeking to capitalize on consumer perceptions that GMO-free foods are healthier, have voluntarily adopted GMO-free labels. No matter if such labeling is voluntary or compelled, the seller faces difficult evidentiary burdens in trying to substantiate GMO label claims. Let’s say it can be proved that GMO ingredients are not contained in a finished food item. How far up the production chain must one go in order to ensure GMOs were not otherwise involved in the process?

Last week, the popular restaurant chain Chipotle was sued in a proposed class action over its GMO-free claims. Chipotle has prominently made serving GMO-free food, and small farming in general, a centerpiece of its marketing. Its anti-GMO marketing stance has
Continue Reading Here Come the GMO-Free Class Actions

Laura Makeup Block Image

While a study hardly seems necessary to confirm it, an article published in the Journal of Global Fashion Marketing reports that of 289 cosmetics ads surveyed, only 18% could be viewed as generally trustworthy. While some may view this finding to be mere common sense, others – particularly plaintiffs’ counsel looking for potential class action claims – may view cosmetics as the next frontier after food labeling. After all, for an attorney with a “natural claim” lawsuit or similar complaint already drafted, the possibility of repurposing a ready-made legal formula may be highly appealing. Might cosmetics claims become the target of a new wave of false advertising litigation, akin to the “food wars”?

Continue Reading Is Makeup About to Get Ugly? Plaintiffs’ Counsel May See the High Promises of Some Cosmetics Advertisements as a Source of Litigation

On December 8 and 9, 2014, the Food and Drug Law Institute (FDLI) held its annual Enforcement, Litigation & Compliance Conference in Washington, D.C. Speakers from the U.S. Food and Drug Administration (FDA), Department of Justice (DOJ), and other federal agencies, as well as representatives from industry and the private bar, discussed recent activity and predictions for federal regulation of food, drugs, medical devices, cosmetics, dietary supplements, and tobacco in 2015.

  • Several speakers talked about FDA’s restructuring efforts and how that will change the way the agency functions.
    • Several FDA representatives explained that this is being driven in part to maximize resources and to re-align the various Centers with the Office of Regulatory Affairs (ORA), to build expertise, create sector-specific groups, and better coordinate inspection and enforcement efforts. It was predicted that generalist FDA inspectors will be a thing of the past and that there will be commodity-specific inspectors who have real time access to scientists during inspections. It was noted that this new approach may pose some challenges for FDA, which has traditionally functioned in silos.
    • Panelists expressed hope that the changes will lead to more uniformity in FDA’s inspections and enforcement and will, for example, result in less strategic port-shopping by importers.


Continue Reading Report from FDLI’s 2014 Enforcement, Litigation and Compliance Conference

The Federal Trade Commission (FTC) and U.S. Environmental Protection Agency (EPA) are both considering tightening rules governing the advertising of vehicle fuel economy. New federal regulations, however, may not stem the recent tide of consumer class actions alleging that auto manufacturers have misled consumers with inaccurate miles-per-gallon (MPG) claims.

Since 1975, the FTC has published its Fuel Economy Guide, which advises auto manufacturers and dealers to prominently disclose their vehicles’ estimated city and highway MPG whenever they make fuel economy claims 1 . These MPG estimates must be based on EPA-mandated testing procedures. 2 FTC began soliciting comments on revisions to its Fuel Economy Guide in 2009. In May 2014, FTC issued its most specific questions to date, inviting the public to comment on the following issues:

Continue Reading Stricter Rules for Fuel Economy Advertising Are on the Horizon, But Are Unlikely to Put the Brakes on Consumer Class Actions

In January 2014, a blind patron sued Lucky Brand Jeans for discrimination when he was not able to use Lucky Brand’s point-of-sale (“POS”) device to independently complete a debit purchase because the visual touch screen on the POS was not discernible to blind individuals. The plaintiff filed a class action under title III of the Americans with Disabilities Act (“ADA”) in the U.S. District Court for the Southern District of Florida. Recently, the Department of Justice (“DOJ”) filed a Statement of Interest in this case in response to two arguments advanced by Lucky Brand in a motion to dismiss.

Lucky Brand argued that: (1) there is no requirement within the ADA and its regulations mandating that the POS devices have the capabilities requested by the plaintiff; and (2) since blind customers can purchase items by using cash, credit, or by processing their debit card as a credit card, there was no discrimination under the ADA merely because the plaintiff could not use the POS device to use his debit card as a debit card.

Continue Reading DOJ’s Recently Articulated Position on the Accessibility of Point-of-Sales Devices

A bill has been introduced in the California legislature that would dramatically increase retailers’ liability for data breaches. Dubbed the “Consumer Data Breach Protection Act,” Assembly Bill 1710 would enact sweeping changes to California’s data breach notification laws, setting short deadlines by which consumers would need to be notified of breaches and increasing the penalties associated with such breaches. AB 1710’s new provisions would apply to all businesses that sell goods or services to California residents and accept credit or debit cards, although the law retains exemptions for certain businesses that are subject to other privacy regulations (such as financial institutions).

The California Retailers Association has already come out in opposition to the bill, and in years past, has successfully fought similar efforts to expand the state’s data breach notification laws. However, given the number of recent high profile data incidents, lawmakers are in a stronger position this year to amend California’s data protection laws. Indeed, as introduced, AB 1710 made only minor nonsubstantive changes to the data privacy laws, but in the wake of various well-publicized data breaches, the bill’s authors substantially amended the bill to increase the “teeth” in the law.

The following briefly summarizes some of the bill’s key proposed changes:

Expands Restrictions on Data Use and Retention. AB 1710 limits retention of “payment-related data” to the amount of time required for “business, legal, or regulatory purposes.” Retention of payment-related data would be prohibited if it is unnecessary for those purposes. The bill also requires businesses to create “payment data retention and disposal” policies specifying the amount of time such data will be retained. The bill prohibits the retention of certain types of data, such as card verification codes, PIN numbers, social security and driver’s license numbers. The bill also forbids the sale of an individual’s social security number. The term “payment-related data” is defined to include all items that fall within the current statutory definition of “personal information,” such as a consumer’s name, social security number, driver’s license number, account numbers, and user name and passwords.

Continue Reading California Legislature Seeks to Restrict Data Use and Ramp Up Retailer Liability for Data Breaches