Retail & Consumer Products Law Observer

Retail & Consumer Products Law Observer

Legal Insight for the Retail and Consumer Products Industry

Michelle Gillette

Michelle Gillette

Michelle Gillette is a partner in Crowell & Moring’s San Francisco office, head of the firm’s Food & Beverage Industry Practice, and a member of the firm’s Advertising & Product Risk Management Group. She is an accomplished trial lawyer whose practice is focused on representing emerging and established companies in litigation in federal and California state courts, with an emphasis on defending food, cosmetics, and retail companies in lawsuits involving false or misleading advertising, product liability, unfair competition, unfair business practices, trade secrets, torts, breach of contract, and patent infringement.

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Soda Stays Safe in San Francisco

Posted in Advertising & Product Risk Management, Product Liability & Torts
Ninth Circuit Blocks Sweet Drink Warning Labels Pending Free Speech Lawsuit The Ninth Circuit dealt a blow to the war on sugar last month, calling the warning labels a San Francisco ordinance would require on sweet drinks “deceptive” and blocking the mandate on free speech grounds. As we have discussed before, cities and counties across… Continue Reading

Target Takes Aim at Chemicals in Consumer Goods; Announces New Strategy to Promote Safer Products

Posted in Advertising & Product Risk Management
Late last month, Target announced a new strategy to remove certain chemicals from consumer products sold in its many stores.  The approach focuses on increased transparency, proactive chemical management across the supply chain, and innovation of safer alternatives.  As a part of this new chemicals strategy, touted by many as the most comprehensive of its… Continue Reading

Would “Juice” by Any Other Name Taste as Sweet? Court Cites FDA Guidance in Resuscitating “ECJ” Class Action

Posted in Advertising & Product Risk Management, Consumer Class Action
In a long-awaited pronouncement, on May 25, 2016 the Food and Drug Administration issued its final guidance recommending that food and beverage manufacturers discontinue their use of the term “evaporated cane juice” (ECJ) to refer to sweeteners extracted from sugar cane. As the agency explained, “the use of ‘juice’ in the name of a product… Continue Reading

Beauty with a Side of Mercury?

Posted in Advertising & Product Risk Management, Consumer Class Action, Product Liability & Torts, Torts
On July 26, 2016, FDA issued an updated warning on beauty products, warning consumers to avoid certain “skin creams, beauty and antiseptic soaps, and lotions,” particularly those boasting “anti-aging” or “skin lightening” benefits, as potentially containing mercury.  While the dangers of mercury exposure are well-known, mercury’s ubiquity in certain beauty products is not.  Products that… Continue Reading

A New Federal GMO Labeling Standard in the Works?

Posted in Advertising & Product Risk Management, Consumer Class Action
One week before the Vermont GMO labeling law will take effect, a bipartisan bill requiring mandatory labeling for products containing genetically modified ingredients has been agreed to by Senate AG committee ranking member Debbie Stabenow (D-MI) and Committee Chairman Pat Roberts (R-KS).  The bill, which would require the Secretary of Agriculture to establish a national… Continue Reading

Keeping It “Real”: Supreme Court Holds That Consumers Must Allege Real Harm

Posted in Advertising & Product Risk Management, Consumer Class Action, Privacy & Data Protection
In Spokeo, Inc. v. Robins, the U.S. Supreme Court has issued yet another narrow decision—apparently designed to avoid a 4-4 deadlock—in another hard-fought, potentially divisive case on its docket this term. On May 16, 2016, the Court held 6-2 that the Ninth Circuit had erred in not asking whether plaintiff Robins had alleged that he… Continue Reading

Ninth Circuit Refuses to Cut Plaintiff Slack in Ebner v. Fresh, Inc.

Posted in Advertising & Product Risk Management, Consumer Class Action
Companies from Procter & Gamble and Unilever to Mars and Starbucks have recently been hit with class actions slightly different from the false advertising claims we have gotten used to seeing. Now, instead of just alleging that companies are deceiving consumers through the language used in their advertising claims, consumer plaintiffs are expanding their allegations… Continue Reading

Won’t Get Fooled Again: Recent Bigelow Decision Raises Roadblock to Consumer Plaintiffs Seeking Injunctions in False Advertising Class Actions

Posted in Advertising & Product Risk Management, Consumer Class Action
Federal judges often find themselves confronting a familiar conundrum in consumer class actions that challenge misleading practices. The typical plaintiff will file a suit after somehow discovering that one of the defendant’s advertisements, product labels, or other representations is “false” or “misleading.” The self-nominated “representative” asks the court to certify a class of all consumers… Continue Reading

Heading Off the Pick-Off: Ninth Circuit Slams Door on Use of Rule 68 “Deposits” to Moot Class Actions

Posted in Advertising & Product Risk Management, Consumer Class Action
Handed down January 20, 2016, the Supreme Court’s decision in Campbell-Ewald Co. v. Gomez was a major blow to what class action practitioners call the pick-off strategy: using a Rule 68 offer of complete relief to “pick off” a putative class representative, thereby mooting the class action suit. In Campbell-Ewald the Court rejected this tactic… Continue Reading

The World on a Chocolate Wrapper: California District Court Clarifies Companies’ Duty to Disclose Human Rights Abuses in Supply Chains

Posted in Advertising & Product Risk Management, Consumer Class Action
The continuing use of child and forced labor in parts of the world is, without question, a humanitarian tragedy. Less clear, though, is whether consumer class actions in the United States are a suitable tool for addressing this problem. Should retailers and manufacturers be subject to suit under consumer protection statutes if they fail to… Continue Reading

Down Goes Tyson: What Does Tyson Foods v. Bouaphakeo Mean for Consumer Class Actions?

Posted in Advertising & Product Risk Management, Consumer Class Action
Last Tuesday, the U.S. Supreme Court handed down its keenly anticipated decision in Tyson Foods, Inc. v. Bouaphakeo, another in its recent run of class action cases. Siding 6-2 with the plaintiffs-respondents, the majority held that the employees at one Tyson pork processing plant could extrapolate how much overtime class members had worked from statistical… Continue Reading