Recall
Recall Sign

In December 2022, the U.S. District Court for the Eastern District of Michigan dismissed a putative class action against FCA US LLC on prudential mootness grounds because FCA announced a voluntary safety recall shortly after plaintiffs filed suit. Earlier this year, LG Energy Solution Michigan (“LG”) showed, yet again, how a voluntary recall can prove an effective defense to pending litigation.

Continue Reading Recall Litigation Report: LG Energy Solution Michigan Reaps the Benefit of a Quick and Comprehensive Recall
US & China Trade War

After a pause in 2022, there has been much talk of the continuation, or resumption, of a wave of retail bankruptcy cases as we begin 2023.  2022 was highlighted by Revlon’s filing (discussed here: Revlon May Signal Another Wave of Retail Bankruptcies | Retail & Consumer Products Law Observer (retailconsumerproductslaw.com)).  Revlon pointed to a number of issues that led to its filing, including most prominently, supply chain issues. Severe impediments in the supply chain – whether the inability to source product or the costs and delays in received goods — have been cited by many debtors since Revlon since as a leading cause of their distress.  And it may get much worse before it gets better, particularly for companies that source, directly or indirectly, from China.

Continue Reading Continued Pain in the Retail Sector:  Coming Enforcement of Forced Labor Laws

Valentine’s Day at the FTC was marked by the Commission’s breakup with one of its longtime Commissioners, who abruptly announced her retirement in a splashy op-ed that garnered significant media attention.  The agency also announced a new Office of Technology and proposed consent orders related to “review hijacking” and robocalls. These stories and more after the jump.

Continue Reading FTC Updates (February 6 – February 17, 2023)
Stove

On Wednesday afternoon, CPSC Chairman Alexander Hoehn-Saric addressed the annual conference of the International Consumer Product Health and Safety Organization (ICPHSO) for the second time as chairman. In his remarks, Hoehn-Saric looked back on his first year as chairman, including the recent controversy over gas stoves, and shared some of the agency’s priorities moving forward. But the central theme of Hoehn-Saric’s remarks could not have been clearer— consumers are first in everything the agency does.  

Continue Reading CPSC Chairman Addresses Gas Stoves and Other Issues at ICPHSO Conference
Meta Birkin

The global fashion marketplace is experiencing unprecedented digital transformation with the emergence of the metaverse and NFTs. Given implementation is still in its early stages, fashion brands have closely watched the Hermès vs. Rothschild “MetaBirkins” dispute as a case that has the power to help define the future boundaries for what constitutes trademark infringement in the metaverse.

Continue Reading A victory for Hermès in the bag: How the “MetaBirkins” verdict may pave the landscape for the future of fashion and the metaverse
Federal Trade Commission

The FTC has continued its strong start to the new year with enforcement actions related to false advertising in the healthcare industry and misleading conduct in the “gig” economy as well as  revising the merger reporting thresholds and filing fees. These stories and more after the jump.

Continue Reading FTC Updates (January 16 – January 27, 2023)
US-FederalTradeCommission-GettyImages-1165010257-Sm

#ICYMI – The Federal Trade Commission (“FTC”) extended the public comment period on its solicitation for public comments regarding potential updates and changes to the Green Guides (Guides for the Use of Environmental Marketing Claims) by 60 days.  On December 14, the FTC held an open meeting and voted to notice the public comment period. On December 20, the FTC noticed the public comment period on the Federal Register, which would have originally expired on February 21, 2023. All public comments must now be filed by April 24, 2023.

Continue Reading Green Guides Comment Deadline Extended
Household Kitchen Home Appliances

Key Takeaways

  1. In 2023, the Department of Energy is likely to increase enforcement of its energy and water conservation standards.
  2. The penalties associated with violating energy and water conservation standards can exceed $500 per violation and result in multi-million-dollar penalties.
  3. Manufacturers and importers of appliances and other consumer and industrial products can mitigate enforcement risk by refamiliarizing themselves with the energy and water efficiency regime and conducting internal compliance audits.

As the Biden Administration enters its third year, now with a party split in Congress, it seems likely that the Administration will redouble its focus on executive branch regulatory tools that can be used to achieve energy-related policy objectives, including with respect to energy efficiency and reducing carbon emissions. For manufacturers and importers of appliances and certain other consumer, lighting, plumbing and commercial and industrial products, that means the potential for additional scrutiny of their products’ compliance with the Department of Energy’s (DOE) conservation standards for energy and water efficiency. It also likely means a commensurate increase in DOE enforcement activity for non-compliance with the applicable efficiency standards or the associated test procedures required to demonstrate compliance, as well as registration and labeling requirements. Given the magnitude of the penalties associated with violating efficiency standards, currently $503 per violation, which can quickly run into multiple millions of dollars across noncompliant units, manufacturers and importers should consider refamiliarizing themselves with DOE’s conservation standards regime.

Continue Reading Appliance Manufacturers and Importers Should Prepare for Increased DOE Enforcement Activity in 2023
Federal Trade Commission

The FTC started the new year with a proposed new rule that would ban employers from imposing non-competes on their workers. It also announced increases to civil penalties connected to various federal provisions. These stories after the jump.

Continue Reading FTC Updates (Jan 2 – 13, 2023)
Recall
Recall Sign

The second half of 2022 proceeded much like the first, with manufacturers busy navigating recalls and related litigation, although not necessarily in that order.

Philips CPAP/ BiPAP Machines Still Under Fire

Philips is still battling an onslaught of cases stemming from a June 2021 recall of CPAP and BiPAP breathing machines, including a consolidated consumer class action, In re Philips Recalled CPAP, Bi-Level PAP, & Mechanical Ventilator Products Liability Litigation, No. 2:21-mc-01230 (W.D. Pa.), MDL No. 3014, and a medical device supplier suit, Baird Respiratory Therapy, Inc. v. Philips, 2:22-cv-00886 (E.D. Pa.). Since early 2021, there have been reports of over 260 deaths and thousands of health problems associated with the degrading polyurethane foam found in these devices, which was used inside millions of CPAP and BiPAP machines for over a decade. Philips claims that it has produced over 3.95 million repair kits and replacement devices to date and continues to research potential health risks to users from its machines. Despite these efforts, its legal troubles will continue into 2023, with even more consumer-facing lawsuits, including Braverman v. Koninklijke Philips N.V., No. 2:22-cv-7927, which was first filed at the end of December 2022 in the U.S. District Court for the Eastern District of New York and is one of the first CPAP/BiPAP suits to allege the inhalation of the toxic foam particles caused mouth and tongue cancer.

Continue Reading Recall Litigation Report: Year in Review (2022)