With the recent rise of federal Food & Drug Administration (FDA) warning letters to the manufacturers of various ingestible cannabidiol (“CBD”) products, we can expect an increase in false advertising claims against manufacturers, distributers and sellers of those products. Nonetheless, in an important case of first impression in this arena, a federal trial court in
Kevin C. Mayer
FDA Cracks Down on Health Claims in CBD Advertisements
When the U.S. Food & Drug Administration (FDA) issued 15 warning letters to companies selling CBD-infused products late last year, it more than doubled the number of warning letters directed to manufacturers of such products in 2019. The warning letters were announced in a November 25 press release in which FDA also stated that, at…
FTC Warns Retailers to Police Their Products’ Deceptive Concussion Prevention Claims
As the storm of concussion-related litigation continues to churn, the Federal Trade Commission is once again wading into its turbulent waters. In August, the FTC sent warning letters to five undisclosed “major” retailers, expressing concerns that athletic mouthguards are being advertised deceptively on the retailers’ web sites as helping to prevent concussions. These FTC letters represent the convergence of two trends at the Commission: (1) a recent focus on advertising claims of concussion prevention/protection; and (2) sustained efforts to hold retailers accountable for advertising claims concerning the products on their shelves.
Retailers in the Crosshairs
The FTC’s letters mark the first time that the Commission has called retailers to account for allegedly deceptive concussion claims. They cite a 1977 FTC decision, Porter & Dietsch, Inc., for the proposition that retailers “can be liable for violating the FTC Act by disseminating false or unsubstantiated claims.” The FTC cited an example of a specific (and redacted) product, and recommended that the retailers review their web sites to ensure that they do not contain “concussion protection claims for which competent and reliable scientific evidence does not exist.” The FTC stated its intent to revisit the retailers’ web sites within 90 days, and implied that enforcement actions would be forthcoming if unsubstantiated claims were not removed.
FTC’s concussion warning letters continue a trend of the Commission using the threat of enforcement against retailers essentially to turn them into deputized enforcers of false advertising rules. This practice places a substantial burden on retailers to demand substantiation of potentially questionable claims from product manufacturers.…
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The Questionable Benefits of California’s Prop 65 Reform
Many experts agree the California public has become immune to the warnings on goods and premises required by Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. Instead of educating the public, the more notable outcome is a burgeoning cottage industry of plaintiff attorneys bringing frivolous “bounty hunter” enforcement lawsuits against businesses for minor or illusory violations of the statute. As a forthcoming report from the California Attorney General shows, 73 percent of all private settlement payments—totaling $12.7 million—went toward private enforcers’ attorney’s fees and costs in Prop 65 lawsuits settled in 2013. This trend prompted Gov. Brown to declare in May 2013 that Proposition 65 reform was necessary to end these “frivolous shakedown lawsuits.”
In response, California’s Office of Environmental Health Hazard Assessment issued proposed amendments to the regulation on March 7, 2014. Under these notional reforms, businesses operating or selling products in California would need to substantially change their warnings if their products or premises contain certain chemicals listed as “known” carcinogens or reproductive toxicants. OEHHA has claimed — with little support — that these changes will provide “more clarity to the Proposition 65 warning requirements and more specificity regarding the minimum elements for providing a ‘clear and reasonable’ warning for exposures that occur from a consumer product, including foods and exposures that occur in occupational or environmental settings.”
The opposite is likely to occur.…
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