Consumer products law blog

Understanding the legal challenges and implications surrounding consumer product law

March 31, 2021

Prop 65 claims for alleged exposure to acrylamide in food are all too common. In the first three months of 2021 alone there have been 109 acrylamide notices issued. Acrylamide is not a chemical that is intentionally added to food, but rather forms in many types of foods when cooked at high temperatures, including chips, French fries, baked goods, and coffee. In the face of increased enforcement over acrylamide, including the ongoing coffee litigation,…

Consumer products law blog

FDA presses pause on CBD enforcement guidance—for now

By Mark Faccenda (US), Will Troutman (US) & Katie Fragoso (US)

January 31, 2021

In the dawn of the new administration, the U.S. Food and Drug Administration (FDA) withdrew its “Cannabidiol Enforcement Policy,” a document that stakeholders had hoped would deliver long-overdue guidance on cannabidiol (CBD) regulations. The White House had completed its review of the document back in July, although no subsequent action followed, and the contents were never released to the public. The document was not specifically targeted—a Biden administration memo instructed the federal agencies to withdraw…

Consumer products law blog

California flammability standard for upholstered furniture goes national

By Will Troutman (US) & Eva Yang (US)

January 15, 2021

On December 21, 2020, Congress passed The Safer Occupancy Furniture Flammability Act (SOFFA), which was presented alongside other legislation in a $1.4 trillion COVID relief omnibus bill. SOFFA requires the adoption of California’s TB 117-2013 as a federal flammability standard for residential upholstered furniture. TB 117-2013 outlines performance standards and methods for testing the smolder resistance of cover fabrics along with the barrier, filling, and decking materials used in upholstered residential furniture. Background Historically, there…

Consumer products law blog

California moves to restrict the use of short-form Prop 65 warnings

By Jeff Margulies (US), Will Troutman (US) & Lauren Shoor (US)

January 11, 2021

On January 8, 2021, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice of proposed rulemaking significantly limiting the use of the short-form warning as a safe harbor. The proposed regulation makes the following changes: Limiting the use of the short-form warning to products with 5 square inches or less of label space for consumer information Requiring at least one chemical to be identified in the warning Eliminating short-form warnings in internet…

Consumer products law blog

Stream-of-commerce considerations for consumer product patent infringement claims

By Tamsen Barrett (US), Thomas Orsak (US) & Sean Patrick McGinley (US)

December 15, 2020

An initial question a consumer product manufacturer or retailer should consider when sued for patent infringement is: does the court have personal jurisdiction? Determining whether a court has personal jurisdiction to hear a case can help avoid liability and dismiss a case early in the proceedings. This issue can present a difficult question for litigation strategy if the defendant only placed the accused product into the stream-of-commerce. For example, if a manufacturer in Northern California…

Consumer products law blog

Coffee roasters and retailers defeat Proposition 65 lawsuit

By Jeff Margulies (US) & Lauren Shoor (US)

August 26, 2020

We previously wrote about a regulation issued last year by the California Office of Environmental Health Hazard Assessment (OEHHA) exempting chemicals in coffee from Proposition 65’s warning requirement. The question then was what effect the new regulation would have on the long-pending industry-wide enforcement action brought by the Council for Education and Research on Toxics (CERT) over acrylamide in coffee. Well, we now have an answer. The litigation, against approximately 75 roasters and retailers, was…

Consumer products law blog

Breach of contracts and a social media gaming celebrity

By Will Troutman (US) & Eva Yang (US)

August 4, 2020

As more and more consumer markets brands turn to influencers and social media stars to promote their products, novel legal issues are bound to arise! Sue Ross and Eva Yang provide their analysis on a case recently litigated in the Southern District of New York that includes claims under California’s Talent Agency Act and the California Business and Professions code. Check out their post, “Social media gaming celebrity and breach of contracts,” on…

Consumer products law blog

Federal court says Prop 65 warnings for glyphosate violate the First Amendment

By Jeff Margulies (US)

June 29, 2020

On June 22, 2020, Judge William Shubb of the US District Court for the Eastern District of California entered an order prohibiting the State of California from requiring Prop 65 warnings for glyphosate, the active ingredient in the herbicide Roundup®. The decision was not based on whether glyphosate had been improperly listed under Prop 65, or whether the amount of exposure to average users was below the no significant risk level. Rather, the court concluded…

Consumer products law blog

Judge issues first ruling dismissing lawsuit for Braille on gift cards

By Jeff Margulies (US) & Eva Yang (US)

June 16, 2020

Earlier this year, we posted about the new wave of ADA claims that flooded the district courts in New York concerning Braille on gift cards (see Braille on gift cards: ADA accessibility issue or novel shakedown?) . Four months later, a judge in the Southern District of New York issued the first ruling to shut down one plaintiff’s claims, holding that Title III does not require Braille on gift cards. See Dominguez v. Banana…

Consumer products law blog

CCPA enforcement trends–what we are seeing

By Jeff Margulies (US) & Katie Fragoso (US)

May 4, 2020

Despite limitations on private rights of action within the California Consumer Privacy Act, many were concerned that the plaintiffs’ bar would find creative ways to skirt CCPA’s boundaries. Four months into CCPA enforcement, those concerns have been borne out. We are seeing three worrisome enforcement trends: Expanding the CCPA’s private right of action; Cloaking a CCPA claim as a California Unfair Competition law violation; and Retroactive application of the CCPA to conduct pre-dating January 1,…

Consumer products law blog

Understanding the legal challenges and implications surrounding consumer product law

Blog Authors

California District Court grants preliminary injunction barring Prop 65 acrylamide lawsuits

FDA presses pause on CBD enforcement guidance—for now

California flammability standard for upholstered furniture goes national

California moves to restrict the use of short-form Prop 65 warnings

Stream-of-commerce considerations for consumer product patent infringement claims

Coffee roasters and retailers defeat Proposition 65 lawsuit

Breach of contracts and a social media gaming celebrity

Federal court says Prop 65 warnings for glyphosate violate the First Amendment

Judge issues first ruling dismissing lawsuit for Braille on gift cards

CCPA enforcement trends–what we are seeing

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