Litigation

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…

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.

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…

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…

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.…

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…

California’s Safe Drinking Water & Toxic Enforcement Act of 1986 (affectionately known as “Proposition 65”) has long been the subject of discussion, both pro and con. Much of the conversation is on various issues surrounding the enforcement of Proposition 65 (for example, see a prior post here). In…

Some of our colleagues from Mintz Levin’s Class Action Practice, Joshua Briones, Crystal Lopez, and Grace Rosales, recently authored an interesting and timely article in the Bloomberg BNA Product Safety & Liability Reporter. The article examines certain defenses in consumer fraud class actions over product labeling – specifically,…

We do not get many court decisions in the CPSC world, but yesterday we received one. Last evening, a Wisconsin federal district court essentially held in the Government’s case against Spectrum Brands, Inc. (Spectrum) that (1) Spectrum failed to timely report defective coffee pots in violation of Section…

“…Clowns to the right of me, jokers to the left, here I am…”

Last month, the California Office of Environmental Health Hazard Assessment (“OEHHA”) adopted new Proposition 65 warning regulations. Much of the discussions regarding these new regulations have centered on the warning requirements that become effective, after an approximately two-year phase-in period, in August 2018.

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

On March 25, 2016, Administrative Law Judge Dean Metry found that the U.S. Consumer Product Safety Commission (“CPSC”) case counsel did not prove that high powered, small rare earth magnets (“SREMs”) (1) are defective as sold by Zen Magnets (“Zen”); and (2) constitute a substantial product hazard when…

There have been many twists and turns over the past four years concerning the CPSC’s regulation of certain high powered, rare-earth magnet sets and its litigation against various entities selling these magnets. In the latest chapter of the magnets saga, a federal court in Colorado has permanently enjoined…

Allegations are increasing against The Honest Company, Inc. for false and misleading marketing of its products as “all natural” and “plant-based” when they supposedly contain synthetic ingredients. The Honest Company sells personal care, cleaning, and baby products in multiple channels including at retail, online and through consumer subscriptions.…

We recently blogged about a new wave of class action litigation related to California’s Transparency in Supply Chains Act. In December, Nestlé USA won the dismissal of a complaint against it alleging that the company was “obligated to inform consumers that some proportion of its cat food products…

Monty Python and the Holy Grail (1975) contained a scene where bodies of plague victims were brought out to the curb for collection via a cart whether or not they properly belonged there. One living fellow insists on not being dead by exclaiming: “I’m not dead yet.” Unfortunately…

Our colleagues Michael Arnold and Gauri Punjabi recently discussed the U.S. Supreme Court’s rejection of the Federal Rule 68 “pick off” strategy on Mintz Levin’s Employment Matters Blog. We previously blogged about this crafty strategy employed by class-action defense counsel back in November 2014. Following the recent Campbell-Ewald…

Last year, we wrote about a growing trend of local jurisdictions regulating children’s products, primarily toys and apparel. One such jurisdiction, Albany County, NY, enacted a far-reaching ordinance, “Local Law J of 2014,” that prohibited the sale of children’s products containing seven chemicals of “high concern” (see previous…

The first round goes to the industry: on December 9, 2015, the Central District of California dismissed the complaint in Barber v. Nestle USA, a key bellwether case in a new wave of class action litigation related to California’s Transparency in Supply Chains Act. The Barber plaintiffs’ theory…

The 2016 Omnibus Spending Bill recently passed by both houses of Congress ushers in important developments in the food safety, labeling, and nutrition spaces. Following House and Senate votes December 18, it now goes to President Obama for his signature.

On December 2, 2015, the Grocery Manufacturers Association announced SmartLabel, a pioneering technology initiative that gives manufacturers and retailers an important new channel for disclosing information about their products directly to consumers. Through SmartLabel, simply by searching online or scanning the bar code on a product’s label, consumers…

A courtroom battle concerning a manufacturer’s alleged false marketing of allegedly foreign-produced products as “Made in USA” is potentially nearing a resolution. On November 30, 2015, the lead plaintiff in Paz v. AG Adriano Goldschmied, Inc. et al. asked the court for preliminary approval of a $4 million…

Today the Safe and Accurate Food Labeling Act of 2015 passed the House, in a vote of 275 to 150 (more information here). Still a hot-button issue, opposition to the Act is emotionally charged, with those opposed to the bill calling it the “DARK” Act (Denying Americans the…

The proposed Federal regulation of GMOs is proceeding. Following the White House’s recent action on GMOs, Representative Pompeo’s “Safe and Accurate Food Labeling Act” (H.R. 1599) was passed by the House Agriculture Committee on July 14.

The “toxic trio” is a foreboding name some associate with common and seemingly innocuous manicures and pedicures. Salon workers suffer higher-than-average rates of birth defects, miscarriages, cancers, and skin afflictions stemming from their daily use of nail products, many of which contain potentially harmful chemicals. A New York…

[This article originally appeared on Law360.com on June 23, 2015.]

On Wednesday of last week, the Department of Justice (DOJ) and Consumer Product Safety Commission (CPSC) announced that a complaint has been filed in federal court against Spectrum Brands, Inc. (Spectrum). Notably, this is the second case in the past three months brought by the government in federal…

Earlier this year, we wrote about a far-reaching product safety ordinance enacted into law in Albany County, NY (the “County”) entitled “The Toxic Free Toys Act.” At the time, we expressed our concern that numerous issues would arise in the local law’s implementation and enforcement, particularly with respect…

Despite a stiff litigation challenge from the food industry, Vermont’s GMO-labeling campaign marches on. This week saw major developments in the suit brought by the Grocery Manufacturers’ Association and other food industry groups challenging the constitutionality of Vermont’s GMO-labeling law, Act 120. Each side won an important victory…

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…

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…

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…

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…

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…

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…

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…

In recent years, we’ve noticed a new maneuver that class-action defense counsel have increasingly added to their playbooks: The Pick Off. This is how the play is run: Offer the named plaintiff(s) full relief through a Rule 68 offer of judgment and, even if the plaintiff(s) reject the…

As we’ve explored in past posts, mandatory GMO-labeling legislation has, at best, a spotty track record among state legislatures. Nevertheless, the GMO issue continues to draw the public’s attention, and it is becoming clear that the “Non-GMO” label now appeals to at least certain segments of the consumer…

Bids to require mandatory labeling of foods containing genetically modified organisms (GMO) were voted down in Colorado and Oregon on Tuesday. Colorado voters rejected Proposition 105, with nearly 70% of voters saying no; while Oregon voters rejected Measure 92, with only 50.9% against the initiative, and 49.1% in…

On October 20, 2014, FDA reached a settlement with the Center for Food Safety (“CFS”) in litigation pending in the U.S. District Court for the District of Columbia. This litigation is related to FDA’s rule for food additives that are “generally recognized as safe” (“GRAS”). In 1997, FDA…

A recent class action settlement has brought fresh attention to two age-old questions. The first: does Red Bull actually give you wings? The second: how carefully should courts screen out bogus claimants from proposed classes of refund-seeking consumers?

We do not typically take positions on product specific issues pending before the U.S. Consumer Product Safety Commission (“CPSC”), but the CPSC’s new safety standard for magnet sets demonstrates both why the agency exists and how it can use its regulatory authority to protect consumers. In enacting the…

This space has thoroughly explored the various forms of civil liability food companies face for the mislabeling and/or deceptive marketing of their products. Last week, a set of landmark convictions in a criminal food-safety prosecution potentially signal increased criminal liability for food companies when matters of public health…

A recent federal decision has made clear that court-ordered recalls can have real teeth, not just for manufacturers but also their officers—especially when the court has reason to suspect a company’s execs are deliberately dragging their feet.

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…

In 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…

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…

Last week, a California federal judge revived a putative class action accusing Amy’s Kitchen Inc. of misleading customers by labeling sugar as “evaporated cane juice” on its products. In a finding that puts the case on hold until the FDA weighs in, Judge Illston found that a decision…

In most respects, trade associations are pro-competitive organizations: they join together competitors to advance worthwhile goals and to learn from one another. Their societal value is why they are recognized as non-profits. Many trade association activities, in particular safety standard-setting efforts, provide the public with valuable benefits. But…

Yesterday the Supreme Court ruled, 8-0, that Pom Wonderful LLC could pursue mislabeling claims under the federal Lanham Act against the Coca-Cola Company, even though the label at issue complied with FDA labeling regulations. The decision reversed the Ninth Circuit’s 2012 ruling that the FDA’s “comprehensive regulation” of…

For the first time in nearly a year, a unanimous U.S. Consumer Product Safety Commission (“CPSC”) announced that a company will pay a hefty civil penalty and enact a strict compliance program to resolve allegations regarding its reporting practices. This announcement comes almost one year after three similarly…

As this blog has reported on numerous occasions, plaintiffs have brought claims challenging labeling of food products for mislabeling. The labels challenged include the use of the term “natural”, “0g trans fat” and the infamous claim of misbranding relating to “crunch berries.”

California’s District Courts have, of late, become the go-to jurisdictions for plaintiffs bringing ‘natural’ labeling lawsuits against national food manufacturers. This is due, in large part, to California’s consumer-friendly Unfair Competition Law, False Advertising Law, and Consumer’s Legal Remedies Act. California District Courts may be sending a different…

As this space has pointed out on several occasions, California’s laws are nothing, if not unique. One such law is California’s Business & Professions Code Section 12606.2 which prohibits a container or package from having false bottoms, false sidewalls, a false lid or covering or to “facilitate the…

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’”

Proposed legislation has been introduced by 3 members of the House, including Rep. Frank Pallone (D-NJ), senior Democrat on the House Energy & Commerce Health Subcommittee, which would direct the Secretary of Health & Human Services (HHS) to create a single, standard front-of-package labeling system for all food…

Would “reasonable consumers” have regarded Paul Cezanne as highly had he painted numerous versions of still life with froot?

A question before district courts these days seems to be whether 100% natural molasses move any slower than the FDA. In July, the Food Court in the Northern District of California asked FDA to opine on the proper use and application of “whether and under what circumstances food…

The role of the Consumer Product Safety Commission (CPSC) in product liability cases is often a two-sided coin. Evidence of a recall is sometimes allowed to establish notice of a defect though the standard to invoke a recall of a product is not the same as proving a…

It would no doubt be helpful to present a jury with information of how plaintiff was driving too fast in choppy water before being thrown from a boat or how the plaintiff allowed lint to collect in the exhaust duct before a fire in the dryer caused property…

On August 5, 2013 the FDA issued its final rule on the voluntary labeling of food gluten-free. This is good news for both consumers and manufacturers.

Manufacturers are removing “natural” statements from their labels, both as part of lawsuit settlements and as an alternate marketing strategy. PepsiCo has agreed to remove the phrase from its Naked juices after a lawsuit was filed against it in California, stating that it will wait for more detailed…

In what may be an indication of things to come, the Food Court (US District Court Northern District of California) has decided to ask FDA for guidance on what it wants on food labels. The Food Court directly addressed the labeling of foods containing GMOs as “natural” in…

Some are concerned that the potential health consequence of the use of genetically modified organisms in food is unknown because of the lack of long-term testing proving that it is safe. Fearful consumers imagine “Franken foods,” conjuring up images of over-sized ears of corn that shuffle about the…

When should a court decide a case that has issues involving an area that Congress has already weighed in on? In the case of cosmetics and FDA, when a lawsuit requires a court to decide an issue committed to FDA’s expertise without a clear indication of how FDA…

Are you for or against GMOs? Do you think the government should get involved? Whether for or against legislation requiring labeling showing any Genetically Modified Organism contained in your food, the fact that the two sides are diametrically opposed on interpretation of critical aspects will ensure litigation. In…

It’s 2 o’clock in the afternoon, you need a snack – maybe a granola bar, but which one? Does the package that boasts it is “100% Natural” win out over the one that is only “All Natural”? Would you even consider one that is merely “Natural”? Well, don’t…