Consumer Product Matters

A product safety and consumer related regulation and litigation blog

Hawaii G-M-O: Kauai County GMO Regs Struck Down in Federal Court

Posted in Consumer Products, Distributors, Federal Regulations, Food & Drug Administration (FDA), Food and Beverage, Litigation, Manufacturers, State Product Safety Laws, State Regulations, U.S. Congress

Throughout the year, this space has periodically re-visited the topic of regulating the manufacture and labeling of foods with genetically modified ingredients (GMOs) at the state and federal level.  This week, a lawsuit out of Kauai, Hawaii shed light on the fate of these regulations at the county level.

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Are Airbnb Hosts Regulated by the CPSC? Short-Term Rental Properties May Require Compliance with Pool & Spa Safety Laws

Posted in Civil & Criminal Penalties, Consumer Product Safety Commission (CPSC), Consumer Products, Federal Enforcement, Federal Regulations, U.S. Congress

Airbnb Pool and Spa SafetyIn the wake of the tragic drowning of Virginia Graeme Baker, the granddaughter of former Secretary of State James Baker, Congress passed and President Bush signed into law the Virginia Graeme Baker Pool and Spa Safety Act. The legislation was sponsored by Congresswoman Debbie Wasserman Schultz (D-FL) and it mandates safety requirements for pool drainage systems in all “public pools and spas.” The safety requirements are intended to prevent swimmers from being entrapped underwater by the powerful suction forces of pool drains – a relatively rare but serious hazard that led to the deaths and injuries of several children.

The law is enforced by the U.S. Consumer Product Safety Commission (CPSC) and has two primary requirements: the installation of drain covers that comply with the CPSC drain safety standard in all public pools and spas, and, for many public pools and spas, the installation of a “backup system” designed to automatically shut off drainage systems should a drain entrapment occur. The expense associated with installing these types of devices is not insignificant and the failure to comply with these federal or similar state requirements could lead to lawsuits, civil penalties, and potentially even criminal prosecution.

While one controversial (but decided) implementation issue centered on the agency’s reversal of an “unblockable drains” exemption from the backup system requirement, another more important issue to the proprietors of small bed and breakfast properties and people who occasionally rent out their homes still remains unresolved—do they have to comply with the VGB Pool and Spa Safety Act? Continue Reading

The Food Fight Continues: Vermont AG Seeks to Dismiss Lawsuit Against GMO Labeling Law

Posted in Advertising, Food and Beverage, Litigation, Retailers, State Consumer Protection Laws

Vermont GMO Labeling Food FightIn June, we reported on a suit brought by the Grocery Manufacturers Association (“GMA”) seeking to rescind Vermont’s new GMO-labeling statute, Act 120.  As we explained in that post, the GMA argues that Act 120 is doubly unconstitutional: not only does the law violate the Commerce and Supremacy Clauses (among others) of the U.S. Constitution by placing an undue burden on interstate commerce, it also runs afoul of the First Amendment by restricting the commercial speech rights of food companies to label their products.  Those constitutional problems—combined with the pragmatic difficulty of meeting the law’s ambitious compliance deadline of July 1, 2016—renders Act 120 indefensible, according to the GMA’s complaint.

On August 8, the Vermont Attorney General’s Office responded to this opening salvo with its own, asking the district court to dismiss the GMA’s complaint in its entirety.  Totaling 50 pages, the AG’s motion provides the first definitive look at the state’s arguments defending Act 120, shedding more light on the battle to come.

So what are Vermont’s responses to the criticisms levied by the GMA?  Highlights from the AG’s argument below:

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CPSC Magnets Trial in December? Zen Magnets Throws Down the Gauntlet; Vows to “Fight Until the End”

Posted in Consumer Product Safety Commission (CPSC), Federal Enforcement, Federal Regulations

Two years ago, the U.S. Consumer Product Safety Commission (CPSC) took the uncommon step of filing administrative complaints against multiple rare-earth magnet companies who refused to voluntarily recall magnetic adult desk toy products deemed to be defective by CPSC staff. Specifically, the agency alleged that these companies sold products containing small, but high powered, rare-earth magnets, which pose a “substantial product hazard” to children.

To date, nearly all of the magnet companies have reached a settlement with the CPSC over the government’s claims regarding the magnetic products.  In fact, earlier this year, we wrote about the settlement reached between the CPSC and the maker of Buckyballs and Buckycubes. However, there is one notable exception to those companies who have settled their litigation – Zen Magnets.

After the CPSC announced its most recent settlement with Star Networks, Zen Magnets issued a strongly worded press release stating, in part: Continue Reading

Senate Confirms Elliot Kaye as Chairman & Joe Mohorovic as Commissioner of the CPSC

Posted in Consumer Product Safety Commission (CPSC), U.S. Congress

Earlier this evening, the U.S. Senate confirmed Elliot Kaye as the new CPSC Chairman and Joe Mohorovic as a new Commissioner of the agency. Once Kaye and Mohorovic are officially sworn in this week, the Commission will be fully constituted with five Commissioners.

Upon the swearing in of Kaye as the CPSC’s new Chairman, Acting Chairman Adler will hand the reins of the agency over and resume his duties as Vice Chairman. President Obama renominated Adler to a second term as a CPSC Commissioner in May but his nomination was not considered by the Senate today. It’s unclear at this time how the Senate will proceed with his confirmation upon their return from the August recess.

We will be posting additional content regarding the new Commission over the next few weeks. For additional background, please read our previous posts on Chairman Kaye, Commissioner Mohorovic, and the implications of a five member Commission.

Expect a New Chairman and Five Member CPSC Next Week

Posted in Consumer Product Safety Commission (CPSC), U.S. Congress

Yesterday, Senate Majority Leader Harry Reid (D-NV) announced on the Senate Floor (video clip below) that the Senate will consider and vote on the nominations of Elliot Kaye and Joe Mohorovic on Monday, July 28th. President Obama nominated Kaye to serve as the next Chairman and as a Commissioner of the CPSC in March and Mohorovic to serve as a Commissioner last November. Regarding the confirmation votes, Senator Reid stated:

SawStop Dismissal Explained: Opinion Crosscutting SawStop’s Antitrust Lawsuit Released

Posted in Consumer Products, Manufacturers

Written by: Helen Kim & Chuck Samuels

Judge Claude M. Hilton of the Eastern District of Virginia recently issued a Memorandum Opinion following up on his June 27, 2014 order (on which we previously wrote here and here) dismissing the complaint filed against the power tool industry by SawStop, LLC.

To recap, according to the February 2014 complaint, in 2000, Stephen Gass, inventor of “SawStop” and a patent attorney, began licensing negotiations with several companies now named as defendants in the lawsuit. As a result, the companies allegedly held a vote on how to respond to SawStop and shortly thereafter ended their individual licensing negotiations with Gass. The complaint also alleges the companies conspired to alter voluntary standards to prevent SawStop technology from becoming an industry standard.

In his opinion dismissing SawStop’s antitrust claims, Judge Hilton wrote: Continue Reading

California Supreme Court Considers Component Parts Doctrine

Posted in Consumer Products, Distributors, Litigation, Manufacturers, Product Liability, State Consumer Protection Laws, State Product Safety Laws

Last week, the California Supreme Court granted review of Ramos v. Brenntag Specialties, Inc. to resolve a split in the Second Appellate District regarding the application of California’s component parts doctrine.  The component parts doctrine stands for the proposition that a company that manufactures component parts cannot be sued under a strict liability theory for a finished product that incorporates its component.

The rationale for not imposing liability on suppliers of product components is a matter of public policy:  such suppliers generally do not participate in developing their component products into finished products for consumers.  Imposing liability on these suppliers would impose a burden on them to closely examine buyer-manufacturers’ processes and final end products in order to ameliorate the suppliers’ potential legal exposure, despite the fact that buyer-manufacturers are in the best position to ensure product  safety.

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House Appropriations Amendments Would Halt CPSC’s Voluntary Recalls Rule; Fund Testing Relief

Posted in Consumer Product Safety Commission (CPSC), Consumer Products, U.S. Congress

The House of Representatives is currently considering H.R. 5016, the Financial Services and General Government Appropriations Act of 2015, which provides funding to many different parts of the federal government for the next fiscal year. This includes the CPSC, which would be funded $118 million under the House bill (the Senate appropriations bill provides for $123 million). Today, Representative Marsha Blackburn (R-TN) introduced and the House passed an amendment  that would halt the CPSC’s ongoing work on finalizing the controversial voluntary recalls rule. The amendment states:

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CPSC Nominees Kaye, Mohorovic, and Adler Sent to Senate Floor for Confirmation Vote

Posted in Consumer Product Safety Commission (CPSC), U.S. Congress, Uncategorized

Today the Senate Commerce, Science, and Transportation Committee approved three pending nominations for the Consumer Product Safety Commission (CPSC). The Committee approved Elliot Kaye as Chairman and Joe Mohorovic and Bob Adler as Commissioners to the CPSC. Although the Committee approved his nomination, seven Republican Senators reportedly voted no on the reappointment of current Acting Chairman Adler. Those Senators included: Continue Reading