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Next week, advertising and product risk management partners Chris Cole and Cheri Falvey and privacy and cybersecurity counsel Liz Blumenfeld will participate in the Brand Activation Association’s (formerly the Promotion Marketing Association) 35th Annual Marketing Law Conference in Chicago, Illinois. Chris Cole will moderate a panel entitled “What’s in a Claim? Principles and Requirements of Claim Substantiation.” Information about the conference agenda can be found here. In addition, Cheri Falvey has written an article for the conference, entitled “’Natural’ & ‘Sustainable’: Risks of Using Undefined Terms in Food Marketing.” Cheri’s article addresses common complications and legal risks arising from the failure of the FTC and FDA to define the terms “natural” and “sustainable.” These terms are frequently used in marketing and can convey a variety of meanings to consumers. The full version of Cheri’s article can be found here.

Next week, partners Greg Call and Jennifer Romano will present three courses to attendees at the National Retail Tenants Association National Conference in Orlando, Florida.  Greg is a long-time NRTA participant and presenter, and he received the NRTA Founders’ Service Award in 2007.  Greg will be teaching a course entitled “Read the Lease: Operating Cost Clauses,” which will discuss how to carefully read operating cost clauses and related provisions and to understand how the words of the lease govern what landlords may charge.  Topics will include such key issues as management fees and calculating denominators.

Jennifer has presented at the NRTA National Conference for the last five years and is a member of its legal track curriculum committee.  Jennifer will be co-presenting a course entitled “10 Pitfalls to Avoid in Pre-Litigation Disputes.” Some of the topics that will be addressed are preservation of electronic documents, protecting the attorney/client privilege, and avoiding a waiver of claims.

In addition, Greg and Jennifer will co-present a course entitled “Goals, Strategies & Tactics:  Litigating Lease Disputes,” which uses a practical, hands-on approach to teach attendees how to manage and resolve lease disputes from preparing a demand letter to litigating a tenant’s claims.

Information about the NRTA and its National Conference can be found at

On May 30, 2013, the National Highway Traffic Safety Administration (NHTSA) unveiled its preliminary policy statement on automated vehicles—defined by NHTSA as vehicles in which some, or all, of the main controls are managed without direct input from the driver. Vehicles with varying levels of automation are already out on the roads and many more are in development, ranging from vehicles that can automatically assist in keeping the vehicle in its lane to vehicles that are capable of driving themselves without any assistance from the driver.  For more information, click here.

This post was contributed by Michael Kuppersmith, an associate in Crowell & Moring’s Washington, D.C. office.

Politicians and public interest groups in the European Union are showing renewed interest in expanded country of origin labeling requirements in the wake of February’s horse meat scandal, where lasagna and other products sold in the EU purportedly made from beef were found instead to contain horse meat. Specifically, attention is focused on Regulation (EU) No. 1169/2011, published in November 2011, which imposes a number of notable labeling requirements, including mandatory nutritional information, allergen ingredient emphasis, and nanomaterial identification. The regulation also includes newly expanded requirements for labeling foods with their country of origin. For more information, click here.

Content provided by Laura J. Walther, counsel in Crowell & Moring’s Washington, D.C. office.

We are now over 3 months into the first compliance year for federal Conflict Minerals regulations, and over 6,000 directly impacted companies and thousands of their suppliers are trying to figure out the best way to build and execute an effective compliance plan. By this time, most of those impacted have a good understanding on the background of the legislation and on the key definitions, applicability considerations, and reporting requirements. They are now asking themselves, how do we go about instituting a sustainable supply-chain analysis that either allows us to achieve compliance in 2013 (year 1) and beyond, or else to make representations to those who must achieve compliance? Additionally, forward-looking companies have asked themselves how they can embrace the conflict minerals rules in the context of the corporate social responsibility and sustainability movement, thereby gaining a competitive edge.

On April16, 2013, Crowell & Moring will co-host (along with international consulting firm Resources Global) a webcast that will address many of the key challenges companies are facing including: lessons learned from early adopters and others who have already started down the path to compliance; and practical and opportunistic considerations to apply to your conflict minerals planning and compliance efforts.

Among the speakers are Crowell & Moring attorneys Morris DeFeo and Danielle Sugarman.

To register, please visit this link

The Environmental Protection Agency (“EPA”) has announced that it plans to explore future rulemaking on the management of “waste retail products” under the Resource Conservation and Recovery Act (“RCRA”).  Waste retail products include unsold or returned retail products which may at some point become hazardous waste under current RCRA regulations.  According to the Unified Agenda, “[b]ecause of the wide range of products that can become waste, retailers find it difficult to comply with the RCRA hazardous waste regulations that were designed for manufacturing and other types of industry wastes.”  As a result, EPA has expressed an intent to issue a Notice of Data Availability sometime this month identifying relevant information and data, and soliciting additional information and comments from interested stakeholders and the public. Click here for further information. 

This post was authored by Dawn Miller, an associate in Crowell & Moring’s Washington, D.C. office.  She practices in the firm’s Environment, Energy & Resources Group. 

The responsibilities of retailers for safety and health issues that arise in the supply chain became a recurring topic of discussion at the 20th annual International Consumer Product Health and Safety Organization (ICPHSO) meeting and training symposium held on February 26-March 1, 2013, just outside Washington, D.C. Representatives from the U.S. Consumer Product Safety Commission (CPSC or Commission), consumer product retailers, and others spoke about retailers’ past and future involvement with the Commission’s efforts to protect consumers from unsafe products.

In recent years, retailers have become involved in an increasing number of recalls of products for which they are not the manufacturer. The Commission typically prefers to work with manufacturers  – as compared to retailers or others in the supply chain – to implement recalls for several reasons: (1) manufacturers usually have a superior knowledge about the product and supply chain; (2) they are usually in the best position to offer an appropriate remedy or fix; and (3) it is more efficient to deal with one manufacturer as opposed to multiple retailers. Retailers, however, have become useful allies of the Commission, and the CPSC does not hesitate to approach retailers when necessary. CPSC Commissioner Robert Adler explained that the Commission usually contacts retailers about recalls when a manufacturer has gone out of business or has chosen not to cooperate with the CPSC. Staff spoke about retailers’ unique ability to apply pressure to noncompliant manufacturers as well as to get word out to consumers about unsafe products. CPSC Chairman Inez Tenenbaum thanked retailers for their continued cooperation in conducting voluntary recalls during her keynote address at the annual meeting. 

Continue Reading Focus On Retailers At ICPHSO 2013

Crowell & Moring is pleased to announce two upcoming presentations regarding consumer protection regulation and enforcement and what President Obama’s second turn will mean for retailers (as well as manufacturers and distributors). With the re-election of President Obama, we can expect the government to continue to add to the existing federal regulations. The discussion panel, which includes former agency officials at the FDA and CPSC and lawyers practicing before other key agencies like the FTC, will discuss the new rules, regulations, and enforcement priorities facing retailers, manufacturers and distributors during President Obama’s second term. Ranging from food and consumer product safety issues, privacy initiatives, advertising and consumer protection priorities, these new and anticipated changes affect your bottom line.

These lunch presentations are hosted by the Association of Corporate Counsel San Francisco Bay Chapter. One session will take place in Palo Alto on February 12, 2013 at 11:30 a.m. The second will take place in San Francisco on February 13, 2013 at 11:30 a.m.

Please join us to learn how your business can thrive in light of recent developments as well as forthcoming regulations. Crowell & Moring’s Washington, D.C.-based Advertising and Product Risk Management attorneys will comment on key areas of regulatory activity in the area of consumer protection, including

  • the publication of the Federal Trade Commission’s (FTC’s) Green Guides on substantiation of environmental claims;
  • the FTC’s 2012 Privacy Report, “Protecting Consumer Privacy in an Era of Rapid Change: Recommendations For Businesses and Policymakers,” which outlines the FTC’s views on best practices for consumer data collection;
  • the Food and Drug Administration’s (FDA’s) sweeping new regulations under the 2011 Food Safety Modernization Act (FSMA);
  •  the Consumer Product Safety Commission’s (CPSC’s) public database and  requirements for testing and certification of  consumer products which become effective in February 2013;
  • the new rules on the Children’s Online Privacy Protection Act  (COPPA); and
  • the FTC in 2013 and what enforcement will mean for your business.

For additional information or to register for the Palo Alto session, please click here.

For additonal information or to register for the San Francisco session, please click here.

By email dated December 14, 2012, the Environmental Protection Agency (EPA) withdrew its controversial direct final rule requiring the reporting of existing and unpublished health and safety data for cadmium and cadmium compounds used in consumer products pursuant to section 8(d) of the Toxic Substances Control Act (TSCA). In its email, EPA admitted that "there is significant confusion and uncertainty within certain industrial sectors concerning the rule." EPA went on to indicate that it "will withdraw the immediate final rule and will sign a Federal Register notice announcing this decision no later than the January 2, 2013, effective date of the immediate final." EPA will be considering the questions and concerns raised in response to the immediate final rule and next steps with regard to this rule.

Continue Reading EPA Reverses Course and Promises to Withdraw TSCA Section 8(d) Cadmium Rule

Although not approved by the FDA, triclosan is a common antibacterial agent in a number of household cleaning and personal hygiene products sold in the United States, including soaps, deodorants, hand-sanitizers, toothpastes, and mouth wash. In recent years, manufacturers have also expanded the use of triclosan as an antimicrobial in cosmetics, socks, workout clothes, and toys.

On August 14, 2012, researchers from the University of California, Davis, and the University of Colorado published findings suggesting that the antibacterial ingredient triclosan causes muscle weakness. The researchers observed that after exposure to triclosan, heart muscles in mice showed a diminished ability to contract, and that fish exposed to the ingredient showed reduced swimming activity. Triclosan has been previously scrutinized for its disruptive effects on the body’s endocrine system and whether its use promotes the creation of bacteria that are resistant to antibiotics.

Some companies have already responded to increased public concerns about triclosan by taking steps to remove it from their product lines. Last year, for example, a major manufacturer of oral care, personal care, and home care products announced it was removing triclosan from most of its home-care products, and more recently a multi-national manufacturer of personal hygiene and other products followed suit announcing that it is phasing triclosan out of its beauty and baby care products.

Companies that have incorporated triclosan into their products should develop risk mitigation strategies to prepare for the inevitable class action lawsuits aimed at deep corporate pockets. At a minimum, manufacturers and users of triclosan products should closely monitor new research, FDA and EPA comments, and developing governmental actions impacting the continued use of triclosan.

For more information, see the full alert at the link below.

Content for this post was provided by the following product risk management attorneys in Crowell & Moring’s Washington, DC office: Monica M. Welt (counsel) and John Fuson (partner).