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
In our continuing efforts to highlight litigation trends that affect consumer product companies, we often focus on class actions brought in California and, especially, its federal Northern District. The Northern District of California has come to be nicknamed the “Food Court,” and with good reason: the district is a high-traffic forum for class actions targeting the labeling and advertising of a range of consumer goods, but especially food and beverage products. In one recent suit in the Food Court, however, plaintiffs have taken a page from the food-and-beverage class action playbook to target a very different kind of product from a different kind of company–albeit one with a food-related name itself.
The lawsuit, filed last Tuesday as Orshan v. Apple Inc., alleges that the consumer electronics giant has illegally deceived consumers by misrepresenting the storage capacity of its 8 GB and 16GB iPhones, iPads, and iPods. Citing the usual array of California consumer protection statutes, the Orshan complaint claims that Apple falsely advertises these products as offering a specific amount of memory when, in reality, they have anywhere from 18.1% to 23.1% less usable storage space than advertised.
More details on the allegations against Apple, as well as the plaintiffs’ Food Court-inspired theory, below.
This has been a big year for GMO legislation. In 2014 alone, 25 states have proposed 67 pieces of legislation aimed either at the labeling of products containing GMOs or at the ban of GMO-containing crops. While this space has strived to keep you up-to-date with the latest news in the war over GMOs, this scorecard aims to provide a bird’s-eye view of the major battlefields…
In a recent post, we detailed lawsuits filed by corn exporters, farmers, and other stakeholders against Syngenta Corp. regarding its marketing of corn which contains genetically modified (“GMO”) traits that have not been approved for export to countries such as China. On December 11, 2014, the Judicial Panel on Multidistrict Litigation agreed to consolidate multiple class actions and other suits filed against Syngenta by corn farmers, exporters, and others. As the Panel described in its transfer order, “[a]ll actions involve common factual questions regarding Syngenta’s decision to commercialize the MIR 162 genetically modified corn trait in the absence of Chinese approval to import corn with that trait,” and thus these cases are to be consolidated in the District of Kansas before U.S. District Judge John Lungstrum, who has a depth of experience with complex litigation. The case previously discussed in detail in this space, Archer Daniels Midland Co. v. Syngenta, was filed in Louisiana state court and has not yet been consolidated with the myriad federal actions in the District of Kansas.
Additionally, earlier this week, in a separate action that related to Syngenta’s marketing of its GMO corn, Syngenta ended its dispute with Bunge North America Inc. (“Bunge”) in which Syngenta alleged that Bunge had engaged in a false advertising campaign by posting signs at its receiving facilities that stated that Bunge would not accept Syngenta’s GMO corn because it has not been approved for export to China. In their dismissal stipulation, the parties agreed to dismiss the case with prejudice without an award of fees or costs to any party.
Stay tuned to this space for further updates regarding Syngenta’s GMO corn litigation.
As we’ve explored in past posts, Congress is currently considering a bill that aims to harmonize the patchwork of state efforts at regulating GMO labeling by placing such regulation firmly within FDA’s jurisdiction. Dubbed the Safe and Accurate Food Labeling Act (H.R. 4432), this bill would give FDA exclusive authority to regulate the labeling of products containing GMOs, effectively preempting state legislation in this field.
This past Wednesday, the House Energy and Commerce Committee held a hearing to consider that bill as well as the broader question of whether and how the federal government should regulate GMO labeling. Members of the Committee heard testimony from six witnesses on both sides of the debate over the course of three hours.
On the side against GMO labeling, perhaps the most influential witnesses were Michael Landa, the director of FDA’s Center for Food Safety and Applied Nutrition, and Tom Dempsey, the President and CEO of the Snack Food Association. The most notable voice on the other side: Representative Kate Webb of Vermont, the only state to have passed a GMO labeling law that does not depend on other states to act before going into effect. The contrasting testimony from these witnesses vividly illustrates the poles of this debate, and the questions posed by the Committee give a meaningful glimpse into the factors that may motivate Congressional action.
More highlights from the hearing below:
Update: After some uncertainty, Congress passed and the President is expected to sign the 2015 Omnibus bill into law.
The report language of the Omnibus bill incorporated by reference House Report 113-508, which accompanied a previous appropriations bill passed by the House earlier this year. This additional report language addresses several key CPSC issues, including: import safety, the phthalates Chronic Hazard Advisory Panel, window coverings, and the agency’s proposed amendments to its regulations on voluntary recalls, 6(b) information disclosure, and certificates of compliance.
For further details about this additional report language, please read our previous post from earlier this year.
Yesterday congressional leaders announced that they reached a deal on an omnibus bill that will fund the federal government through September 30, 2015. Included in this bill is $123 million in funding for the CPSC, which is the amount the agency requested in its 2015 Budget Request and an increase of $5 million from what the agency received in 2014.
Not included in the omnibus or other 2015 legislation, however, is statutory language authorizing the agency to collect user fees from importers of consumer products. As a part of its 2015 Budget Request released in March, the agency sought the statutory authority to collect user fees to fund an estimated $36 million in annual costs for a full-scale national import surveillance program. Currently, the CPSC’s import surveillance program is in its pilot stage and limited in scope. In May, the National Association of Manufacturers (NAM) and 40+ other trade associations wrote a letter to then Acting-Chairman Adler raising concerns about this type of user fee authorization.
Additional items of note that Congress outlined in its report language accompanying the Omnibus included: Continue Reading
Last month, Archer Daniels Midland Co. (“ADM”) joined a slew of corn exporters and other stakeholders who have sued Syngenta based on allegations that China rejected these exporters’ products because Syngenta’s genetically modified corn seed, which contains a trait that China has not yet approved for import, was not kept separate from the plaintiffs’ products.
Syngenta’s corn seed contains MIR 162, a patented genetically modified (“GMO”) trait that may protect corn crops from insect damage. This corn is also known as “Viptera corn.” The ADM suit against Syngenta, which was filed in Louisiana state court on November 19, alleges that Syngenta was negligent in marketing its GMO corn.