Photo of Laura Jastrem Walther

Laura Jastrem Walther is a counsel based in the Washington, D.C. office of Crowell & Moring. She practices in the Product Liability & Torts and Advertising & Product Risk Management groups with particular focus on consumer product litigation and regulatory counseling. She has experience with class actions and has represented clients in connection with a wide array of products including children's products, fire safety products, plumbing parts and other building materials, automotive products and aviation products.

Furniture installation

I was feeling rather smug, having ordered a children’s product and shipped it home in advance of visiting my parents with my four year old. But as I was congratulating myself on advanced planning, I received a series of emails from my parents. The product required some assembly, and the instructions appeared to be incorrect. I confess my initial reaction was concern – perhaps my parents were losing mental dexterity earlier than expected? But more emails followed, explaining that the company’s customer service center had told my parents that, yes, the instructions were incorrect and revised instructions were in the works. With some phone guidance, the product was finally assembled. My parents were understandably frustrated by the whole experience.  So much for advanced planning!

While at first blush this scenario sounds like a customer service issue, it could also have real legal implications.  Continue Reading Some Assembly Required: When Product Instructions Implicate Legal Concerns

Laura Makeup Block Image

While a study hardly seems necessary to confirm it, an article published in the Journal of Global Fashion Marketing reports that of 289 cosmetics ads surveyed, only 18% could be viewed as generally trustworthy. While some may view this finding to be mere common sense, others – particularly plaintiffs’ counsel looking for potential class action claims – may view cosmetics as the next frontier after food labeling. After all, for an attorney with a “natural claim” lawsuit or similar complaint already drafted, the possibility of repurposing a ready-made legal formula may be highly appealing. Might cosmetics claims become the target of a new wave of false advertising litigation, akin to the “food wars”?

Continue Reading Is Makeup About to Get Ugly? Plaintiffs’ Counsel May See the High Promises of Some Cosmetics Advertisements as a Source of Litigation

128021458Perusing the labels at your typical cosmetics counter or pharmacy aisle can feel akin to reading the menu of options for a smoothie bar.  “Antioxidants,” “Aloe,” “Vitamin C,” “Almond extract,” “natural fruit,” and “protein” all appear to be popular options.  When it comes to specifics, labels often vary from saying that an ingredient is contained in the product to simply splashing the ingredient name in bold font, unmodified.

Why does this matter from a legal stand point?  Just like any other advertising claim, claims about product content require reasonable substantiation, and must not be misleading.  The risk in touting a particular product ingredient is often less about whether the claim is literally true, and more about whether it implies a greater amount or performance impact than actually provided.

The highly publicized POM Wonderful LLC v. Coca-Cola Co. case put ingredient claims in the spotlight when POM Wonderful challenged Coca-Cola’s use of the use of the words “Pomegranate Blueberry” on its juice label when the product contained only 0.3 percent pomegranate juice and 0.2 percent blueberry juice.  The United State Supreme Court overturned a lower court ruling, and found that POM Wonderful could proceed with its Lanham Act claims. The case was remanded back to the Ninth Circuit where it remains pending – meaning a little ingredient claim may give rise to big money litigation. (For more background on the POM Wonderful caseclick here.)

So far, like in POM Wonderful, food products have been the primary target of legal challenges, but nail care products and tanning cream have been the subject of competitor challenges based on the effectiveness of the publicized ingredients, and shampoo and sunscreen have been the target of “natural” claims litigation based on their contents.  In-house counsel for cosmetics and personal care companies should take note.  If your company’s called-out ingredients are called out, can you stand behind how much cucumber is in your eye cream?

At this year’s National Law Journal (NLJ) Regulatory Summit in Washington, DC, held on December 1, 2014, speakers focused on the current and future of the federal regulatory landscape in the United States.  Highlights included:

  • Former Congressional Leaders Speak on Future Trends in Health Care and Other Sectors

The featured speakers included former U.S. Senate Majority Leader Tom Daschle and Former Speaker of the House of Representatives Dennis Hastert.The former congressional leaders spoke of the current political division between what Daschle described as “rugged individualism versus collective action.”  While acknowledging an increased divide between political parties, the speakers hoped to see possible movement in some areas, possibly in the areas of Medicare, Medicaid or tax reform.Much of their discussion focused on health care issues as prominent areas of focus going forward, although they predicted more action in the courts and at the state level than at the federal level.Trends to watch for included a movement away from fee for service, and also continued emphasis on wellness extending beyond the health care sector and into businesses themselves as a way to reduce health care costs.

Continue Reading Highlights from the National Law Journal Regulatory Summit 2014

At this year’s National Advertising Division (NAD) annual conference in New York City held on September 29-30, the hot news was old news—speakers from NAD, FTC and various stakeholders emphasized a back-to-basics focus.

For instance, Crowell & Moring’s Chris Cole moderated a panel on product demonstrations. The panel discussed recent NAD decisions, but these recent decisions revolved around the fundamental principles that product demonstrations must accurately reflect how the advertised product works, and must be adequately substantiated.

Even panels on “newer” advertising forms, like native advertising, came back to the concept that consumers should be provided enough information to know who is the author or promoter behind an “info-tisement,” so that they can weigh the information accordingly. Again, the themes of reasonable consumer expectations, accurate information, and adequate support reigned supreme.

Continue Reading Highlights from NAD and CARU Annual Conference in NYC: New Technology, But Old Principles

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

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 looking to see what consequences the rule may have for confidential treatment of manufacturer self-reporting under section 15(b). Taking a broader view of how a change to one rule may affect agency practices under another statutory provision or rule can be helpful in identifying agency intentions or avoiding unintended consequences.

Such is the case with the CPSC’s currently pending proposed rule on the voluntary recall process. We have previously written an in-depth analysis of how the voluntary recall rule will affect manufacturers and retailers negotiating voluntary corrective action plans with the CPSC. A more nuanced point, however, is how the proposal to require all such plans to be enforceable settlement agreements will impact the section 6(b) confidentiality of materials submitted under section 15(b).

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