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Consumer Product Matters

A product safety and consumer related regulation and litigation blog

California Plaintiffs Say that Size Matters: Consumer Fraud Class Action Challenges Slack-Fill in Protein Products

Posted in Advertising, Consumer Product Safety, Drugs & Cosmetics, Food and Beverage, Litigation, Manufacturer Product Safety, Private Labeler Product Safety

Slack Fill Protein PowderAccording to named plaintiffs in a consumer fraud action filed in December in the Southern District of California, size matters when making it comes to making a purchase.  In fact, Plaintiffs claim that the average consumer’s purchasing decision is “heavily dependent” on the size of the package.

Plaintiffs have sued Defendant MusclePharm for “intentionally packaging its [protein products] in large, opaque containers that contain more than 45% empty space” or—as Plaintiffs have characterized it—non-functional slack-fill.  Plaintiffs argue that consumers paid a higher price for the products because of the large containers, but they would not have purchased those products if they had known the containers were substantially empty.

For manufacturers of consumer products, the best option to avoid these types of slack-fill lawsuits is to follow these guidelines in product packaging: Continue Reading

USDA Increases Cane Sugar Imports to Meet Demand for Non-GE Products

Posted in Federal Regulations, Food and Beverage, State Regulations, Supply Chain Risk Management, U.S. Congress

On May 17, 2016, the U.S. Department of Agriculture (“USDA”) announced that it is allowing an additional 200,000 short tons of cane sugar imports to meet food manufacturers’ increasing demand for non-genetically modified sugar products. In its news release, the agency explained that

“USDA recognizes that America’s beet sugar producers have made significant investments in a strong 2016 crop, but they continue to face uncertainty. Based on the projections in the May 10, 2016 World Agricultural Supply and Demand Estimates (WASDE) report, USDA took this action as required by the Farm Bill in order to maintain an adequate sugar supply in an uncertain market. This uncertainty is due to inaction on GE [genetic engineering] legislation and lack of consumer information about genetic technology.”

USDA further noted that it would “closely monitor[] sugar production, stocks, consumption, imports, and all sugar market and program variables on an ongoing basis,” and it recognized that the agency “may need to make additional adjustments to imports or domestic marketing allotments.”

This USDA action regarding cane sugar imports is just one example of the market consequences stemming from the uncertainty regarding mandatory GE labeling legislation at both the federal and state levels.  Manufacturers are scrambling to find new sugar suppliers, reformulate their products, and/or relabel their products that could enter Vermont after the  July 1, 2016 compliance date for  Vermont’s Act 120 (which requires food manufacturers to label all FDA-regulated products that have been produced with GE ingredients). Confusion and uncertainty will likely continue among manufacturers and consumers alike as we get closer to that date, as Congress continues to go back-and-forth on a federal law, and as other states begin taking up their own, potentially disparate GE labeling bills.

Stay tuned to this space for more news regarding GE or “GMO” food labeling laws. Our prior GMO coverage is available here.

When Does A CPSC Late Reporting Violation First Accrue?

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA), CPSC Civil Penalties, CPSC Enforcement Actions, CPSC Product Recalls, Litigation, Product Liability

Howsare CohenThis article originally appeared on Law360 on May 12, 2016 and provides additional analysis to our prior post on this subject.

After filing a Section 15(b) report and conducting a recall with the U.S. Consumer Product Safety Commission (CPSC), companies frequently ponder whether the CPSC believes the company timely filed its report under Section 15(b) of the Consumer Product Safety Act (CPSA) and, if not, whether the CPSC will launch an investigation that could lead to a civil penalty action. Unlike the experience of negotiating a recall where there is frequent contact with the CPSC within a defined time frame, the agency is usually silent and takes more time (sometimes years) to decide whether it will investigate whether a company met the statutory time deadline for filing the underlying Section 15(b) report.

In many cases, determining that a report was filed in such a manner to where the CPSC likely would not find reason for a timeliness investigation or civil penalty is relatively straightforward. In other cases where the timeliness of a report is more uncertain, however, only the CPSC’s statute of limitations for pursuing a civil penalty can provide similar comfort.

So what is the CPSC’s statute of limitations? The answer is not as straightforward as it may appear.

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CPSC Chairman Vows that Every CPSC Voluntary Corrective Action Will Be Called a “Recall”

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), CPSC Enforcement Actions, CPSC Product Recalls, Voluntary Recalls

According to the Philadelphia Inquirer, CPSC Chairman Elliot Kaye announced in a meeting with consumer advocates that the agency will never again allow a company conducting a voluntary corrective action to call it anything other than a “recall.”  Last year, after the announcement of a joint CPSC-IKEA “repair program” to address a furniture tip-over hazard involving the company’s popular Malm dresser, we  asked whether the announcement indicated that the agency was possibly softening its practice of labeling every corrective action a recall.

The answer, according to Chairman Kaye, is a firm “no.”   Continue Reading

Just as the Comment Period for “Natural” Ends, FDA Announces Intent to Re-Examine What It Means to Be a “Healthy” Food

Posted in Federal Regulations, Food & Drug Administration (FDA), Food and Beverage

As any company making and selling food products knows, late last year FDA requested information and comments regarding the appropriate use of the term “natural” for food – the Agency asked what types of processing make that claim misleading, or does the food have to be completely unprocessed?  Does natural connote “healthy” and is it confused with “organic” and should it be associated only with certain nutritional benefits?  And a host of other questions intended to help the Agency determine whether it can (or will) take the next step towards establishing a regulatory definition of “natural” on food products.  Tuesday May 10th was the last day to submit comments to FDA’s Natural Docket – now closed, this docket is indicating that it received over 7,600 individual comments.  So it will not be a small task for the Agency to review and consider all of those thousands of comments – but they’ve already decided to wade into another complex and important food claim, in this case the claim “healthy.” Continue Reading

Matt Howsare Elevated to Mintz Levin Partner

Posted in Consumer Product Safety

It is with great pleasure that I announce that my colleague and friend Matt Howsare has been elected to the membership of Mintz Levin effective April 1, 2016.

In the 2.8 (Matt is very detail oriented) years that Matt has been at Mintz Levin, Matt has proven to be a superb, creative and dedicated lawyer to a range of clients.  As co-chair of our consumer product regulatory practice, he has zealously advocated for a range of clients large and small, retailers, manufacturers, importers, and testing labs, while never losing that Southern courtly, mannerly style (in contrast to my more brusque, get-to-the-point Northerner style). His transition from one of the youngest chiefs of staff for any federal agency to a great asset for the regulated community has been seamless. Those who have received his 2 AM emails will be delighted to know that he has finally met his match in his lovely new daughter whose hours are even more extreme (but she will grow out of it).

The firm and I could not be more delighted about Matt’s elevation to partner, and I look forward to many more productive years together. It is a relatively small CPSC community, and I know my colleagues in the advocacy community, and at the Commission, companies and law firms join me in congratulating Matt and his family on this well-deserved career milestone.

Mark Your Calendars: BPA Prop 65 Warnings Required as of May 11, 2016; Styrene Also Added to the Prop 65 List

Posted in Distributors, Food and Beverage, Prop 65, State Consumer Protection Laws, State Regulations

Earlier this month, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) issued a Notice of Emergency Action to allow temporary use of a standard point-of-sale warning message for bisphenol A (“BPA”) exposures from canned and bottled foods and beverages. This emergency rulemaking came only three weeks before California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”) warning requirements for BPA becomes effective on May 11, 2016. Several days later, OEHHA also added styrene to the Proposition 65 list as a known carcinogen.


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“GMO” Labeling Food Fight: How Vermont’s Act 120 Is Pressuring An Entire Industry

Posted in Federal Regulations, Food & Drug Administration (FDA), Food and Beverage, State Regulations

On July 1, 2016, Vermont’s Act 120 will require food manufacturers to indicate in the labeling of all products regulated by FDA when the food has been produced with the use of genetic engineering (GE).  Unless Congress acts with unusual swiftness to pass federal legislation regarding GE or “GMO” food labeling that preempts conflicting state or local laws, Vermont’s law will result in the beginning of patchwork legislation among the states on this issue.  The effect of such legal patchwork will likely lead to confusion among consumers and manufacturers alike – and has forced food manufacturers to grapple with the question of whether to change the labeling for all their nationally distributed products to comply with Vermont’s law or to switch to non-GE food ingredients to avoid having to comply at all.  Among other things, manufacturers are concerned that compliance will significantly increase the costs of production, which will be passed on to consumers.

Law360 recently featured an article written by my colleagues Joanne Hawana and Benjamin Zegarelli  regarding the sudden urgency surrounding GE labeling.  The article provides a great overview of the current GE labeling state of affairs.  You can check it out here.

What is CPSC’s Statute of Limitations for Civil Penalties? That’s a Gabelli Question

Posted in Consumer Product Safety Commission (CPSC), CPSC Civil Penalties, CPSC Enforcement Actions, Manufacturer Product Safety, Retailer Product Safety

Time Expired Statute of LimitationsAfter filing a Section 15(b) report and conducting a recall with the Consumer Product Safety Commission (“CPSC”), it is not uncommon for a company to wonder whether it timely filed its report under the Consumer Product Safety Act (“CPSA”). A question sometimes asked of us is how much time must pass before the company can feel confident that the agency is not going to initiate a timeliness investigation or civil penalty action.

CPSC’s Statute of Limitations

The CPSA does not contain an explicit statute of limitations that answers this question. Instead, the CPSC operates under the general statute of limitations for the government to bring an enforcement action for a civil penalty, 28 U.S.C. § 2462, which states the following: Continue Reading

Maple Syrup Trade Organization Seeks FDA Regulation of “Maple” Products

Posted in Federal Regulations, Food & Drug Administration (FDA), Food and Beverage

maple syrupI haven’t met many people who don’t love maple syrup. Its versatility knows few bounds – traditional pancake or waffle topper, lemonade, salad, and doughnuts come to mind. As you might imagine, the maple syrup industry actively works to protect its product, especially when it comes to alleged imposters.

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