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Cheri Falvey - Crowell & Moring partner and co-chair of the firm’s Advertising & Product Risk Management Group

Consumer safety is increasingly on the minds of government regulators and consumer product companies. In a three-part video series, Cheri Falvey, Crowell & Moring partner and co-chair of the firm’s Advertising & Product Risk Management Group, as well as former general counsel of the CPSC, breaks down risk mitigation strategies that consumer products companies should consider as part of their compliance programs.

In these two-minute videos, Cheri goes over common mistakes that companies can make in meeting their regulatory compliance obligation, what corporate officers can do to avoid enforcement action, and how to minimize the risk of litigation during a product recall, amongst other considerations. Click here to view this video alert and to access a transcript on Each video is also embedded at the bottom of this post.

Continue Reading VIDEO: Risk Mitigation Strategies and Compliance Programs for Consumer Product Companies

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, shade grown coffees, and beans from Ethiopia, Yemen, or Guatemala. What savvy companies and marketers have realized is that American consumers like choice and they like to feel good about the products they buy.

And global trends— like safety concerns about foreign-made products, interest in supporting a flagging U.S. economy, or just plain patriotism—may encourage consumers to change their buying patterns—in favor of American goods. Smart manufacturers and marketers understand this and know that customers may be willing to pay a premium for American quality goods. And so, unsurprisingly, smart companies are doing what they can to make and market products as “Made in America.”

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

On August 13, 2014, Crowell & Moring’s Cheryl A. Falvey was featured as the luncheon keynote speaker at the Promotional Products Association International (PPAI)’s Product Safety Summit in Boston, MA. Her topic was titled: “Building a Scalable Compliance Program for a Small Business.”

The PPAI Product Safety Summit was a one and a half day educational program that focused on the most-pressing product safety issues, as well as the business implications, challenges, and opportunities associated with compliance. Facilitated by industry thought leaders and representatives from product safety labs and product certification groups, this eye-opening event explored the latest developments, as well as best practices.

Click here to read the full article on Cheri’s keynote presentation.

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