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.
Do local governments, such as town councils and county legislatures, have a role in regulating consumer products that is typically reserved for the federal and state governments? Apparently, the legislature and executive of Albany County, New York believe that they do.
Every so often, local jurisdictions get out in front of federal and state legislators and/or regulators on consumer product safety matters. For example, certain cities (Chicago) and counties (Suffolk County, NY) banned bisphenol A (commonly referred to as “BPA”) in certain children’s products before federal regulators addressed the chemical’s use in baby bottles and sippy cups in 2012. Chicago also banned the sale of certain crib bumper pads in 2011.
In the latest example of local action on product safety regulation, earlier this month, Albany County, NY Executive Dan McCoy signed into law “Local Law J,” also known as “The Toxic Free Toys Act,” the most far-reaching local law or ordinance related to children’s product safety enacted in recent memory. The Albany County law, which will take effect in early 2016, prohibits the sale of “children’s products and apparel,” that contain the following seven chemicals: Continue Reading
As this space has discussed, Proposition 65 has been the subject of attempts by the California Legislature to reform the enforcement of the law.
Recently, the California Office of Environmental Health Hazard Assessment (OEHHA), the lead agency for Proposition 65 implementation, has proposed new regulations to the Proposition 65 regiment. The proposed changes to the warning text include:
- A warning symbol on products (current proposal is an exclamation point inside a triangle)
- Products that contain the “dirty dozen”/”list of 12” ingredients (Acrylamide, Arsenic, Benzene, Cadmium, Carbon Monoxide, Chlorinated Tris, Formaldehyde, Hexavalent Chromium, Lead, Mercury, Methylene Chloride, Phthalates) must be specifically identified by name in any Proposition 65 warning.
- Any warnings previously approved in settlements or court judgments are not “grandfathered in.”* Continue Reading
Following an ABC 20/20 investigative story where CPSC Chairman Elliot Kaye called Craigslist’s failure to block the sale of recalled products “morally irresponsible,” the agency announced yesterday that it has entered into an agreement with the Chinese e-commerce company Alibaba Group (“Alibaba”) to stop the sale of products recalled by the CPSC to U.S. consumers. The agreement resembles similar arrangements with other online marketplaces like eBay and Amazon, which date back to initiatives started in 2000 under former CPSC Chairman Ann Brown.
Two of the primary components of such arrangements are for online marketplace companies to: Continue Reading
On January 5, 2015, the U.S. Consumer Product Safety Commission (CPSC) announced that Gerber Legendary Blades, a division of Fiskars Brands Inc., has agreed to pay a $2.6 million civil penalty to resolve charges that it knowingly failed to immediately report to the CPSC a safety hazard associated with its Gator Combo Axe. Notably, the Department of Justice’s Consumer Protection Branch, rather than the CPSC, negotiated this settlement, indicating the CPSC will continue to refer civil penalty actions to the DOJ for prosecution in 2015. Continue Reading