Retail & Consumer Products Law Observer

Retail & Consumer Products Law Observer

Legal Insight for the Retail and Consumer Products Industry

Cheryl A. Falvey

Cheryl A. Falvey

Cheryl A. Falvey is a partner in Crowell & Moring’s Washington, D.C. office. She provides litigation and counseling services, with a focus on consumer protection matters, including product safety, privacy, sweepstakes, promotions, and advertising. Cheryl concentrates on the defense of consumer class action, toxic tort, mass tort, and other tort claims arising out of consumer, occupational, and environmental exposures, as well as trade secret, intellectual property, and other technology litigation, representing clients in the food and beverage, consumer product, technology, energy and chemical industry sectors. Cheryl helps clients protect their brand and reputation, avoid liability in the marketing of their products, build safety into their products with science-based risk assessment, and successfully navigate product safety challenges with rapid response. Prior to joining Crowell & Moring, Cheryl served as the general counsel of the CPSC.

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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

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

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

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

Posted in Events
Join 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… 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

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

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

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

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

To Connect with Consumers on the Internet of Things, Build Security Into Products from the Start

Posted in Advertising & Product Risk Management, Privacy & Data Protection
To tackle the challenges of launching products on the Internet of Things, the FTC recommends designing security into interconnected products from the outset as well as monitoring products post sale to quickly identify security risks. Most consumer product companies already have similar programs in place to ensure the safety of the products and meet CPSC… Continue Reading

What’s Happening at CPSC This Fall

Posted in Advertising & Product Risk Management
As the slow days of summer draw  to a close, school children are not the only ones facing a busy fall  workload. The U.S. Consumer Product  Safety Commission has a packed agenda this fall, and heading into 2015. Here are some of the issues consumer product manufacturers, distributors, and retailers should be following: 1110  Hearing: The… Continue Reading

“Made in America” Claims: the Landscape, FTC Guidance, and Tips for Manufacturers and Marketers

Posted in Advertising & Product Risk Management
The choices facing American consumers are no longer just “paper or plastic” or “do you want fries with that?” Today, when strolling the aisles of a grocery store, customers have the option to buy local, organic, gluten-free, low-carb, or any other of a dozen choices. The local coffee shop offers a selection of responsibly-sourced coffees,… Continue Reading

Report on Phthalates Recommends Permanent Ban on DINP, Additional Permanent Bans on DIBP, DPENP, DHEXP, DCHP, and an Interim Ban on DIOP

Posted in Advertising & Product Risk Management, Environment & Natural Resources
The U.S. Consumer Product Safety Commission (CPSC) has released the risk assessment on phthalates conducted for the CPSC by a congressionally mandated Chronic Hazard Advisory Panel (CHAP). In the Consumer Product Safety Improvement Act, Congress charged the CHAP with making recommendations on whether the use of additional phthalates or phthalate alternatives in children’s toys and… Continue Reading

Highlights from ACI’s 2014 Consumer Products Regulatory & Litigation Program

Posted in Advertising & Product Risk Management, Product Liability & Torts
The American Conference Institute held its Second Annual Consumer Products Regulatory & Litigation conference on June 11-12, 2014, in Chicago, Illinois. Here is a list of the key takeaways from this year’s event: On recent Commission activity: While Commissioners at the Consumer Products Safety Commission (CPSC) may admit to having “erasers on their pencils” when… Continue Reading

The FTC “Pins” Cole Haan on Pinterest Campaign: Disclosure of Contest Driving Endorsement of Products Required

Posted in Advertising & Product Risk Management
The rise of social media for contests and marketing campaigns has captured the attention of the Federal Trade Commission (FTC), particularly campaigns that provide for contest entry based on what amounts to social media endorsements. “Like Company XYZ now to enter!” The FTC is taking stock and beginning to weigh in on this relatively recent… Continue Reading

What Modernization of CSPC’s Information Disclosure Rules Could Mean for Product Manufacturers

Posted in Advertising & Product Risk Management
The CPSC has proposed a new rule to modernize and streamline the information disclosure process under section 6(b) of the Consumer Product Safety Act.  The rule changes the scope of information protected from disclosure and the confidentiality of manufacturer comments submitted in the process. Read more about these changes in our legal commentary, “Upsetting The… Continue Reading

CPSC Voluntary Recall Rule and the Impact on Disclosure of Manufacturer Self-reports Under Section 15(b)

Posted in Advertising & Product Risk Management
Far too often, we look at each rule an agency issues as a standalone rule impacting the specific stated regulatory objective. With regard to the long-awaited revisions to the U.S. Consumer Product Safety Commission’s Information Disclosure Rules under section 6(b) of the Consumer Product Safety Act, expected to be released shortly, all eyes will be… Continue Reading

CPSC Approves Publication of Proposed Voluntary Product Recall Rule

Posted in Advertising & Product Risk Management
On November 13, 2013, the U.S. Consumer Product Safety Commission (CPSC) voted 3-1 to publish notice of a proposed interpretive rule that would establish standards for voluntary product recalls, revising 16 CFR part 1115. As approved, the proposed rule, which originally focused on the form and content of recall notice, incorporates several substantive amendments introduced… Continue Reading

California Unveils Green Chemistry Initiative’s Candidate Chemicals Lists

Posted in Advertising & Product Risk Management, Environment & Natural Resources, Product Liability & Torts
A month in advance of its October 31, 2013 statutory deadline, California’s Department of Toxic Substances Control (DTSC) on September 26, 2013 released its preliminary lists of Candidate Chemicals under the state’s newly enacted Green Chemistry Initiative.  The Green Chemistry regulations, which officially took effect today, require certain “Priority Products” to go through a rigorous… Continue Reading

California Finalizes Green Chemistry Regulations

Posted in Advertising & Product Risk Management, Environment & Natural Resources
Retailers need to begin thinking right now about how they will handle their compliance obligations under the new Safer Chemicals Regulations in California, which go into effect on October 1, 2013.  Under the regulations, identified Chemicals of Concern will be paired with Priority Products and then Responsible Parties will be required to submit an alternatives… Continue Reading

Navigating the U.S. Market for Children’s Products: Guidance for Manufacturers of Infant and Toddler Products

Posted in Advertising & Product Risk Management
Products designed and manufactured for use by infants, toddlers and children must comply with legal requirements at both the federal and state level in order to be sold in the United States. Manufacturers can successfully enter the U.S. children’s product market if they identify what regulations apply to their products, what testing and certification and… Continue Reading

Legislative Proposal Announced to Repeal Requirement that Car Seats Contain Allegedly Hazardous Flame Retardant Chemicals

Posted in Advertising & Product Risk Management, Environment & Natural Resources
The Juvenile Products Manufacturers Association (JPMA) announced today a legislative proposal to ensure that car seats manufactured for sale in the United States no longer need to contain allegedly hazardous flame retardant (FR) chemicals. The bill, which will likely be introduced later this week, allows manufacturers the flexibility they need to build car seats that… Continue Reading