Photo of 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.

First 100 Days LogoJoin 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 programs? What changes will we see and how will they affect your safety program?

Join us for a roundtable discussion of what the regulated community can expect under the new administration at the Food & Drug Administration, Consumer Product Safety Commission and the National Highway Safety Administration. We’ll help you to forecast where policy shifts on by focusing on topical discussions of emerging products such as autonomous cars, drones, miniaturized cameras and e-cigarettes, and emerging issues including fire and lithium ion batteries, as well as hacking concerns on interconnected products.

Please click here to register for this webinar, or click here to view the event on Crowell.com.

Key topics to be discussed: Continue Reading Webinar: The Safety Agencies in Transition – What to Expect at FDA, CPSC and NHTSA in the First 100 Days

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 the Commission since January 19, assumed her new duties once Kaye announced his decision to the agency.

Former Chairman Kaye has not resigned his seat on the Commission—his announcement relates to the chairmanship only.  This development presents an unusual dynamic moving forward: although the Commission will now be chaired by a member of the President’s political party, the Republicans will remain the minority party on the Commission until at least October 2017 when Democratic Commissioner Marietta Robinson’s term on the Commission expires.

Commissioners’ terms are fixed and are independent of the Administration (whichever political party is in power).  Thus, absent the early resignation of a Democratic Commissioner, the Commission will be led by a Chair who does not command a 3-2 voting majority based on political party.  Democratic Commissioners Kaye, Adler, and Robinson remain in the majority and incoming Acting Chair Buerkle and Commissioner Mohorovic remain in the minority.

Given this highly unusual circumstance, policy changes at the Commission are not likely to come fast; the transition will occur over the coming year.  Nevertheless, Acting Chairwoman Buerkle will have additional resources at her disposal and be able to set new priorities for the Commission.  We expect that Acting Chairwoman Buerkle will continue to reach out to all members of the product safety community as she has done over her tenure as a Commissioner and listen to the concerns of all stakeholders.

Photo Credit: ICPHSO
Photo Credit: ICPHSO

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, is speaking on February 22nd. Her session is entitled “Practical Lessons In Identifying Risk, Using Effective Tools to Manage It, and Using Data to Meet Regulatory Obligations – In Other Words, How to Stay Out of Trouble!” Cheryl will sit on a panel of industry representatives, all of whom have previously work at CPSC. This panel will provide both the industry perspective as well as insights from the panelists based upon their experiences at CPSC on what one might expect from the regulatory agency responsible for product safety.

Key topics will include:

  1. Guidance and tools that exist to assist industry officials in identifying reportable safety issues at the earliest possible moment to avoid late reporting and exposing consumers to an avoidable risk.
  2. Development of a comprehensive internal compliance program to identify risks and/or defects before they can do harm to your customer.
  3. Use of available systems to assist you in identifying risks/defects.
  4. Understanding what data to collect and review to assist in making appropriate determinations and when to actually report information to CPSC.

To register for the ICPHSO 2017 Annual Meeting & Training Symposium, please visit the main event page.

Photo credit: Flickr

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 products and services. The Act also makes it unlawful for companies to include these clauses in their form contracts. The Federal Trade Commission will enforce the Act in the same way it enforces against unfair or deceptive trade practices under its jurisdiction; state attorneys general may also enforce the Act under certain conditions. For existing contracts, the Act will take effect in 90 days and FTC/state enforcement may commence one year from now.

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

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 goals.

There are many lessons learned here, even based on initial impressions.

Continue Reading CPSC Issues $15.45 Million Penalty at the Statutory Maximum

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 & Company, and Global Brands Group.

Topics include cover anti-counterfeiting, FTC and trademark considerations, ethical sourcing and labor issues, the regulatory framework of labeling and disclosure, mergers/acquisitions and antitrust considerations, and the current legal issues in e-commerce and mobile apps.

We are privileged to have the Honorable Claire R. Kelly from the U.S. Court of International Trade provide opening remarks, and Professor Susan Scafidi, Academic Director of the Fashion Law Institute—and one of the foremost leaders in the field of fashion law—as our luncheon keynote speaker.

Please join Crowell & Moring’s, Cheryl Falvey, Chahira Solh, Frances Hadfield and a host of other speakers and experts for our cutting-edge fashion law panels (and of course plenty of networking opportunities). We look forward to seeing you there!

Photo credit: Federal Bar Association

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.  The appellate court held that federal law impliedly preempted a consumer class action challenging whether Herb Thyme Farms, Inc. falsely labeled its herbs as “organic.”  Although one of the Defendant’s many herb farms was certified as organic,  it allegedly marketed and sold its herbs as “Fresh Organic” with the “USDA Organic” label on its package even though the product was a mix of conventional and organic herbs.

The California Supreme Court found that challenges to the truthfulness of organic labels under state law promotes–rather than conflicts with–the federal regime. The Organic Foods Act prescribes the farming methods that may be used to grow food marketed as organic and establishes state and federal organic certification schemes for organic producers.  It does not, however, prevent consumers from suing over the veracity of an organic label.  Thus, there is no express preemption of such claims based on state law. There is no implied preemption, moreover, because state law traditionally governs consumer protection from deceptive labeling.  The Court also reasoned that Congress could not have intended federal law to preempt suits such as the instant one because “[a] central purpose behind adopting a clear national definition of organic production was to permit consumers to rely on organic labels and curtail fraud.”  The Court reversed the lower court’s decision and remanded for further proceedings consistent with its opinion.

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, the Federal Aviation Administration (FAA) is expected to issue a final rule establishing a mandatory registration requirement for all drones, including those used for recreational or hobby purposes, by mid-December.  The rule will be based recent Department of Transportation (DOT) task force recommendations that would, among other things: (1) create a free online registration system; (2) require registration of any drone weighing more than 250 grams (~9 ounces); (3) require owners to provide their name and mailing address to register; and (4) assign a universal registration number to each owner that can be displayed across any drone they operate.  For more on drone regulations see our earlier article, Drinking and Droning, Safety Privacy and Security Take Center Stage as the Legal Landscape Evolves.

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 reporting and compliance requirements. Whether designing for safety or security, regulators expect design engineers to play a central role in an overall program that operationalizes safety and security as part of ordinary business processes. Both the CPSC and FTC demand engineering solutions for legal compliance and ask companies to build multiple layers of safety and security into a product by design.

Protecting against cybersecurity risks and safeguarding data collected by products on the Internet of Things needs to become business as usual, not some special new legal requirement. Existing corporate process development programs built to ensure a continuous improvement loop in product design need to be updated to ensure that safety, security and privacy are built into every product on the Internet of Things. For more on the FTC’s recommendations for products on the Internet of Things read their report released today.

Image courtesy of Flickr by UMHealthSystem

 

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:

  1. 1110  Hearing: The CPSC hearing on September 18 was  scheduled as a result of significant comments filed on the proposed 110 rule in  order to review “stakeholders” anticipated challenges in meeting an electronic  filing requirement. It provides members  of the industry an opportunity to explain to the CPSC the practical logistics involved  in creating certificates that “accompany” products they ship globally. The announcement for the hearing signaled CPSC’s  desire to get into the details, such as understanding the difference between document  imaging and searchable data elements. Many companies have already developed  systems for meeting certificate of compliance requirements, and the rule  changes would necessitate reengineering of existing IT systems to meet new  requirements.
  2. Magnet  Rule: The Commission moved forward with a hearing  on the proposed rule to ban small rare earth magnets, despite concerns raised  by Commissioner Buerkle that the rulemaking was premature and could affect the  ability of the Commission to serve as the appellate review body with respect to  current administrative cases alleging the magnets present a substantial product  hazard. The matter is not set for a  ballot vote and a decisional meeting is scheduled for September 24, 2014.
    Continue Reading What’s Happening at CPSC This Fall