In September 2019, the FDA sent warning letters to three tattoo ink manufacturers about microbial contamination in the products. The agency conducted microbial analysis of tattoo ink samples collected from customers around the country. The warning letters noted that the tattoo inks contained pathogens and microorganisms that rendered them adulterated under the Federal Food Drug & Cosmetic Act (FFDCA). The agency regulates tattoo inks as “cosmetics” under the FFDCA because the inks are introduced into…

Earlier today, the Supreme Court denied a petition filed by Domino’s Pizza asking the Court to decide whether Title III of the Americans with Disabilities Act (ADA) applies to websites and mobile apps. As we’ve previously discussed, the U.S. Court of Appeals for the Ninth Circuit issued a decision in January of this year holding that companies whose online activities share a nexus with physical places of public accommodation may be held liable under…

On June 28, the Ninth Circuit adopted the California Supreme Court’s McGill rule in Blair v. Rent-a-Center, Inc., 928 F.3d 819 (9th Cir. 2019).  In Blair, the Ninth Circuit held the McGill rule to be consistent with the Federal Arbitration Act (“FAA”), and therefore not preempted by the federal statute. The McGill rule was the result of a decision by the California Supreme Court in which it held  that a consumer credit card agreement waiving…

On August 7, 2019, the Federal Trade Commission convened an all-day workshop to discuss consumer protection issues associated with “loot boxes”—randomized virtual items players can purchase or earn in video games. While the production cost of video games has increased significantly, the average price of console games has largely not changed since the 1970s, and many mobile games are free to download. Panelists observed that loot boxes have helped bridge the gap between this high…

With increasing attention to lawsuits based on “natural” claims, some litigants have also challenged claims that products were “100% pure.”  Many suits have attempted to use findings of chemical or pesticide residue to attack a product’s marketing regarding its purity. While the Food and Drug Administration is yet to provide clear guidance on the term “natural,” numerous courts have found that a reasonable consumer would not expect such product claims to exclude synthetic molecules in innocuous amounts.…

The Federal Trade Commission (FTC) and self-regulatory bodies such as the Electronic Retailing Self-Regulation Program (ERSP) have their attention focused on social media influencers. In a recent decision involving Alo, LLC—the company behind Alo Yoga, a popular purveyor of yoga-related merchandise—ERSP reviewed approximately 60 private Instagram accounts containing endorsements for Alo Yoga’s products. ERSP’s message to advertisers is a familiar one: influencers and endorsers with a material connection to the advertiser must disclose such connection…

On July 31, Dr. Scott Gottlieb, the outgoing FDA commissioner, published an editorial in which he proposed how the FDA could expedite approval of food and beverage products that contain cannabidiol (CBD).            In this update, we review Dr. Gottlieb’s proposal which highlights areas of concern for business involved in the CBD industry, such as labeling and deceptive marketing. Read the full update on PerkinsCoie.com.…