Recent attempts to modify California’s Safe Drinking Water and Toxic Enforcement Act of 1986, Proposition 65, have been the work of the California Legislature. (See A Sane Tweak To Proposition 65 and California Reenters the GMO Food Labeling Arena – This Time Through The Legislature). This past week, however, the California Appellate Court for the First District in Environmental Law Foundation (ELF) v. Beech-Nut Nutrition Corp., 2015 B.L. 72035, (Cal. Ct. Ap., No. A139821, 3/17/15) upheld a trial judge who determined, after entertaining extensive expert testimony, that low levels of lead in products including baby food, fruit juice and packaged food do not produce exposures that trigger a requirement for warnings under Proposition 65.
The Beech-Nut case is one of the few situations where a Proposition 65 plaintiffs’ group has had to litigate what triggers a requirement for warnings under the law. In this case, the court held that the manufacturers met their burden of proof.
This space has addressed on several occasions, [HERE, HERE, HERE, and HERE], recent attempts to modify California’s Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. Many of the comments on proposed changes to Proposition 65 have panned the proposed changes because they either do too little or make businesses’ lives more difficult.
Legislation introduced last week (AB543) by Rep. Bill Quirk (D-Hayward) proposes some sane changes to Proposition 65. Representative Quirk holds a PhD in Astrophysics and was a scientist at Lawrence Livermore National Laboratory before election to public office. It appears that Dr. Quirk understands both the issues of Proposition 65 and politics. Rather than taking a meat axe to the proposition (which more than likely will have no chance in the California Legislature), the legislation focuses on the scientific evidence needed before an exposure warning is mandated under Proposition 65.
Proposition 65 prohibits any business from knowingly and intentionally exposing any individual to a chemical known to California to cause Cancer or reproductive toxicity without giving a specified warning.
The proposed bill would provide that a business does not knowingly and intentionally expose an individual to a chemical known to California to cause Cancer or reproductive toxicity if there exists an exposure assessment that meets three specified requirements:
Another potentially meaningful development in legislation affecting consumer products companies: on February 25, a California legislator introduced a bill, AB 708, that would require manufacturers, distributors and retailers to disclose all “chemical” ingredients for designated consumer products “manufactured from chemicals or chemical compounds.” The bill designates a broad swath of consumer goods for disclosure, from cleaning products and floor polishes to air fresheners and car wax. Covered products include:
Coming on the heels of the reintroduction of the Genetically Engineered Food Right-to-Know Act, on March 3, 2015, the New York State Assembly Committee on Consumer Affairs and Protection voted 9 to 6, with one abstention, to pass bill A.617, which would require food made with genetically modified organisms (GMOs) to be labeled as such.
A.617, titled “An act to amend the general business law and the agriculture and markets law, in relation to the labeling of genetically modified foods,” would require labeling for raw agricultural commodities, processed foods, seed, and seed stock produced with genetic engineering. The bill also details the penalties for misbranding and sets forth various exemptions to the GMO labeling requirement.
Under this proposed law, any food for human consumption, seed, or seed stock offered for retail sale in New York is misbranded if it is entirely genetically engineered or partially produced with genetic engineering and that fact is not clearly and conspicuously disclosed on the product’s packaging. Fines for misbranding are a civil penalty of not more than $1000 per day, per product.
Any person, firm, corporation, or other legal entity may be held responsible for false labels and misrepresentations, but retailers are not subject to penalties unless: Continue Reading
Last year, we wrote about legislative efforts on Capitol Hill to require the CPSC to implement a rule requiring childproof packaging for liquid nicotine containers. Liquid nicotine typically refills the vials for e-cigarettes, which are rapidly gaining in popularity. Recently, Senator Bill Nelson (D-FL), the Ranking Democrat on the Senate Committee on Commerce, Science and Transportation, reintroduced the bill known as the “Child Nicotine Poisoning Prevention Act of 2015” (S. 142) that would require the CPSC to promulgate such a rule. Although the Food and Drug Administration (FDA) has jurisdiction over products that meet the legal definition of a “tobacco product,” the CPSC implements and enforces the Poison Prevention Packaging Act of 1970, which requires a number of household substances to be packaged in child-resistant packaging.
Similarly, Senators Nelson and Richard Durbin (D-IL) recently announced their intention to introduce a bill to seek tougher packaging standards for laundry and dish detergent packets commonly referred to as “laundry detergent pods.” Like the e-cigarette bill, this legislation would require the CPSC to implement tougher safety standards for the pods’ packaging. The pods, which are also increasing in popularity, come in colorful packaging which may be attractive to young children or mistaken for candy or juice.
Finally, and relatedly, the House Appropriations Subcommittee on Financial Services and General Government may hold a hearing next week with CPSC Chairman Elliot Kaye and Commissioner Ann Marie Buerkle to discuss the CPSC’s budget for the coming fiscal year. We will provide more information upon confirmation.
We will continue to update our readers on legislative efforts on Capitol Hill that affect stakeholders within the product safety industry.
Last week, Sen. Barbara Boxer of California, Richard Blumenthal of Connecticut, and Rep. Peter DeFazio (D-Ore)–joined by chef-lebrity Tom Colicchio–announced the reintroduction of The Genetically Engineered Food Right-to-Know Act, a federal bill that would mandate the labeling of foods or beverages containing genetically-modified organisms (GMOs). The bill is Senator Boxer’s second attempt at GMO labeling legislation; in 2013 she introduced similar legislation which ultimately died in committee. Considering the first attempt at such legislation was a mere two years ago, one has to wonder: will things be different this time around? We don’t know the answer for certain, but here are some points to consider:
Written by: Timothy Slattery
In part two of this two-part series, we explore two critical takeaways for those facing potential government intervention: (1) the implications of the Court’s deference to the Commission, and (2) whether a substantive disclaimer is a silver bullet to avoid agency scrutiny (or, at least, an agency win).
A Second Quick Glance at POM Wonderful
To briefly recap, the District of Columbia Circuit Court of Appeals handed the Federal Trade Commission a critical win on January 30, 2015 by affirming the Commission’s January 2013 decision holding POM Wonderful LLC in violation of the FTC Act for its deceptive advertisements alleging pomegranate juice and supplements could treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction. The decision shows the continued reach of the FTC into the scientific bases for health-related advertising, the extensive deference courts give to the agency’s expertise, and that substantive disclaimers may be the only way to avoid liability.
Agency Deference Increases the Commission’s Home-Field Advantage
In this first post of a two-part series, we take a closer look at last Friday’s decision in POM Wonderful v. FTC by the U.S. Court of Appeals for the District of Columbia, which has meaningful implications for how companies advertise their products’ health benefits to consumers. The decision bolsters the Federal Trade Commission’s position that, when a company makes specific claims that its products’ health benefits are scientifically “established,” it must have “competent and reliable scientific evidence” to substantiate these claims–specifically, at least one randomized controlled trial (RCT), the “gold standard” in the medical and scientific fields. A company relying on studies that do not meet this gold standard, like POM Wonderful, risks being charged with false or misleading advertising by the Commission.
For consumer-product companies making health claims–especially in litigation-heavy states like California–the logical next question is whether POM Wonderful somehow exposes them to liability from consumer plaintiffs if they fail to meet the standard articulated in the decision. The short answer is that it does not; POM Wonderful is not likely to “change the game” in the world of private class actions for consumer fraud and false advertising. The reason: what courts and counsel have come to call the “prior substantiation” doctrine. And it has important ramifications for how companies should view and respond to class actions brought in the decision’s wake.
POM Wonderful at a Glance
Last Sunday, during the Super Bowl, Nationwide Insurance ran a controversial commercial entitled “Make Safe Happen.” The advertisement features a young child experiencing memorable moments growing up. However, viewers are informed that the child would not actually experience these moments because he “died from an accident.” The commercial then cuts to a series of [common] household accidents, all involving consumer products. The commercial has been panned by many in the media as the “worst Super Bowl commercial in history.”
We could not disagree with these critics more. Although the commercial was certainly a “downer” and pulled at the heart strings during an otherwise festive event, Nationwide Insurance should be applauded for raising the safety consciousness of the largest viewing audience in television history (114.4 million viewers). The Super Bowl was the perfect opportunity to run such an impactful piece. The fact that so many people are talking about the commercial one week later only underscores its value.
Simply put, every scenario in the commercial in which a child has died as a result of an accident in the home is real. The good news, as the commercial states, is that these accidents are preventable. CPSC Chairman Elliot Kaye stated today: Continue Reading
A vote by European Union (EU) lawmakers in mid-January gave individual governments within the 28-nation bloc the authority to decide whether genetically modified organisms (GMOs) can be grown and cultivated within their borders. The move will give individual member states the ability to prohibit or restrict the cultivation of GMOs within their territory, even if the GMOs have been approved at an EU-wide level. Under the current system, member states may only restrict GMO cultivation within their territory if they present the European Food Safety Authority with scientific evidence concerning food safety. The new law would expand this authority, allowing member states to regulate GMOs for reasons beyond food safety, such as socioeconomic and environmental concerns.