Recently, a federal judge sitting in the Eastern District of California (Sacramento), for the first time, refused to require a manufacturer to place a Prop 65 warning on its product based on a finding that the requirement would violate the company’s First Amendment rights. We have been following this developing issue for some time. (See prior posts here, here, and here.) Continue Reading First Amendment Still Trumps Prop 65

The consumer product safety community is rarely provided guidance by federal court decisions. On Tuesday, however, Judge R. Brooke Jackson of the Federal District Court for the District of Colorado issued an opinion in the never-ending saga of Zen Magnets, LLC v. CPSC.

Ultimately, the court held that Zen Magnets’ due process rights were violated because the company was denied a fair and impartial tribunal in its appeal of an Administrative Law Judge’s Initial Decision and Order. Judge Jackson remanded the case to the Commission for a re-hearing without Commissioner Bob Adler’s participation. The purported violation stems from Commissioner Adler’s comments in the course of a rulemaking for magnet sets that raised a question of his impartiality with respect to the enforcement action against Zen Magnets.

Zen Magnets’ Founder, Shihan Qu, was quick to announce the victory, and it may ultimately be a victory for Zen Magnets. However, for the most part, Judge Jackson’s decision is actually a substantive victory for the Commission with respect to the agency’s authority to declare products substantial product hazards and order mandatory recalls. Continue Reading CPSC’s Zen Magnets Mandatory Recall Reversed: A Mixed District Court Decision Gives Zen Magnets a New Life and the CPSC Favorable Precedent for Mandatory Recalls

Fresh off a victory in the CA primary, California Attorney General Xavier Bacerra filed suit on June 7, 2018 against Nutraceutical Corporation of Park City, Utah and Graceleigh, Inc. dba Sammy’s Milk of Newport Beach, CA, alleging violations of California’s Proposition 65 and California’s consumer protection laws. Continue Reading California AG Leads Attack on Lead in Infant Formula

As this space has addressed before (see here and here), the California Transparency in Supply Chain Act (Civ. Code section 1714.43), enacted in 2010, requires large retailers and manufacturers (those with worldwide sales in excess of $100 million) doing business in California to disclose on their websites their efforts to eradicate slavery and human trafficking from their direct supply chain for tangible goods offered for sale.

In Hodsdon v. Mars, a putative class action, the plaintiff alleged that this California consumer protection law required Mars, Inc. (of Mars Chocolate fame) to disclose on its products’ labels that the products’ supply chains may involve slave labor. The trial judge dismissed the complaint, and on June 4, 2018 the Ninth Circuit affirmed the trial court’s decision, holding that the California consumer protection laws do not obligate Mars to label its goods as possibly being produced by child or slave labor. The court explained that, in the absence of any affirmative misrepresentations by the manufacturer, manufacturers do not have a duty to disclose the labor practices in question, even though they are reprehensible, because they are not physical defects that affect the central function of the chocolate products. Continue Reading Where No Misrepresentation, Ninth Circuit Does Not Require Labels Disclosing Slave Labor

Yesterday, President Donald Trump nominated Peter Feldman to fill the fifth and final spot as Commissioner of the U.S. Consumer Product Safety Commission. The nomination is to fill the vacancy left by past Commissioner Joe Mohorovic, who resigned from the Commission in October 2017.  If confirmed, Feldman’s term would expire on October 26, 2019, however it would be expected that President Trump would re-nominate Feldman for an additional seven year term in the future. Continue Reading President Trump Nominates Peter Feldman as CPSC Commissioner Signaling First Republican Majority at Commission Since 2006

As this space has discussed on several occasions, there are many issues with California’s Prop 65 (check out some of my prior posts about unintended consequences here and here). In full disclosure, most of the issues I discuss here are presented from the viewpoint of businesses that find themselves at odds with citizen enforcers or their counsel, the language of the Proposition, and/or the California courts’ interpretation of that language.

However, Prop 65, otherwise known as California’s toxic substance warning law, appears to be the subject of equal opportunity complaining. Continue Reading Prop 65: GET THE LEAD OUT!

Yesterday the U.S. Senate confirmed Dana Baiocco (pronounced “Bee Awe Co”) as a Commissioner for the U.S. Consumer Product Safety Commission with a term that runs through October of 2024. The confirmation took over eight months from Baiocco’s initial nomination last September and came over sixteen months into the Trump administration. Baiocco’s confirmation signals the shift to an eventual Republican majority at the CPSC for the first time since 2006.

Baiocco, a Republican, is replacing Democratic Commissioner Marti Robinson whose term expired in October of 2017. Robinson has remained on the Commission in a hold-over year but will roll off once Baiocco is sworn in as a Commissioner.

Once Baiocco is sworn in, the CPSC will be balanced equally with two Republicans and two Democrats. The Republicans will be Baiocco and Acting Chairman Ann Marie Buerkle. The two Democrats will be Commissioner, and former Chairman, Elliot Kaye and Commissioner Bob Adler.

The Senate is also still considering President Trump’s nomination of Acting Chairman Buerkle for the permanent Chairman position and a second term as Commissioner. Because Buerkle’s nomination has been pending since last July and she has been in the minority as Acting Chairman since last February, there has been growing unrest among and mounting pressure from major industry groups to swiftly push her nomination through the Senate.

The fifth Commissioner position, which became vacant after the departure of former Commissioner Joe Mohorovic last October, still remains open. President Trump is expected to nominate a new Republican Commissioner to fill this position soon. Once the fifth Commissioner is confirmed, the agency will have a Republican majority for the first time during Buerkle’s tenure as Chairman.

The CPSC issued a press release about Baiocco’s confirmation in which Acting Chairman Buerkle said “Ms. Baiocco brings to the Commission strategic experience in product safety, extensive knowledge of public policy with consumer products and a deep understanding of how companies can be proactive in improving the safety of their products.”

Baiocco also included a statement in the CPSC’s press release, stating:

I am honored to be joining an agency with an enduring and proud legacy of protecting consumers. At a time of ever more complex and technically advanced products coming to market, I look forward to working with the leadership of Acting Chairman Buerkle and the Commission to meet emerging challenges in product safety as well as ensuring that CPSC’s core mission of protecting the public is done in the most responsive manner.”

Anticipating Baiocco’s confirmation, Commissioner Robinson sent an agency wide email on Monday afternoon saying thank you to CPSC staff. Notably, the email did not say goodbye and, in her final blog post, she closed by saying: “Although my term as CPSC Commissioner is now coming to a close, I am not done advocating for safe consumer products. I look forward to continuing this conversation about safety and working with all stakeholders in the future.”

A recent Federal Court decision on the issue of whether to grant a preliminary injunction in the ongoing saga of the appropriateness of adding the pesticide Glyphosate to the CA Prop 65 list (see prior posts, here and here) has become the grist for the “Fake News” phenomenon. More specifically, Momsacrossamerica.org issued a press release on February 28, 2018 entitled “Judge Says Public Doesn’t Need Cancer Warning.”

However, a quick scan of the decision issued on February 26th reveals that the judge did no such thing. Continue Reading Prop 65 Preliminary Injunction and “Fake News”

On Friday, February 16, the U.S. Consumer Product Safety Commission (“CPSC”) announced that it had voted 3-1 (along party lines) to authorize CPSC staff to file an administrative complaint against Britax Child Safety, Inc., (“Britax”) a global manufacturer of car seats, strollers, and other juvenile products. In its Complaint, CPSC alleges certain models of Britax’s B.O.B. jogging strollers contain a design defect which results in stroller wheel detachments.  The Complaint seeks an order finding that the strollers present a substantial product hazard and directing Britax take action to recall the products, among other things.

One aspect of this case that’s especially noteworthy is that it was opposed by Republican Acting Chairman Ann Marie Buerkle, who is President Trump’s nominee for permanent Chairman. The three Commissioners who voted affirmatively are all Democratic Commissioners who, as a supermajority, still have control over many areas of the agency over one year into the Trump administration.

As we have written about previously, the Democratic Commissioners will continue to hold a majority until the confirmation of Republican Commissioner nominee Dana Baiocco. Of course, it is difficult to say how the composition of the Commission could have shaped the outcome of this vote, considering that the Zen Magnets litigation was only possible because a Republican Commissioner voted in favor of authorizing that Complaint while the Commission was composed of two Republicans and two Democrats in 2012. Continue Reading CPSC Sues Britax over Stroller Wheel Detachments

Much of the recent discussion regarding Prop 65 has been focused on the regulatory changes going into effect in August of 2018. And that makes sense since there will be significant changes to the warnings, responsibility, and labeling obligations on product websites. There is, however, other activity that may result in a more profound change as to which chemicals require Prop 65 warnings.  As we have discussed in the past (see prior post here), there has been litigation in California state court addressing the appropriateness of adding the pesticide ingredient Glyphosate to the Prop 65 list. Continue Reading A Federal Court Gets Opportunity to Weigh In on Prop 65 With a Little Help from Some Friends