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Category Archives: Product Liability

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FDA Increases Transparency of Adverse Event Data for Cosmetics and Foods

Posted in Consumer Product Safety, Drugs & Cosmetics, Federal Regulations, Food & Drug Administration (FDA), Food and Beverage, Product Liability

On December 6th, FDA announced that it is publicly releasing data received by the Agency’s Center for Food Safety and Applied Nutrition (CFSAN) about adverse events related to cosmetics and foods, including both conventional foods and dietary supplements.  Adverse events can be any negative reaction to a product, such as a serious illness or allergic… Continue Reading

FTC Issues Long-Awaited Enforcement Policy on OTC Homeopathic Drugs

Posted in Advertising, Children's Products, Consumer Product Safety, Drugs & Cosmetics, Federal Regulations, Federal Trade Commission (FTC), Manufacturer Product Safety, Product Liability

We reported a few weeks ago about a new warning from FDA related to the safety of certain teething-related, non-prescription homeopathic drug products, and in that post we mentioned that both FDA and the Federal Trade Commission (FTC) held public workshops in 2015 to gather information about this uniquely-regulated class of consumer products.  Today, FTC released… Continue Reading

Counterfeit Products Are Often Unsafe Products – More Reasons to Aggressively Police Infringement of Your Trademarks and Trade Dress

Posted in Consumer Product Safety, Manufacturer Product Safety, Private Labeler Product Safety, Product Liability, Retailer Product Safety, Supply Chain Risk Management

Our colleagues in Mintz Levin’s Intellectual Property Practice, Aarti Shah and James Wodarski, recently authored an expert analysis piece in Law360 that examined the use of the U.S. International Trade Commission (ITC) to combat a rising tide of counterfeits and knockoffs in all kinds of consumer product industries.  Aarti tells us that, in addition to the… Continue Reading

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

This 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… Continue Reading

Three More FSMA Rules Finalized As the Year Comes to a Close

Posted in Federal Regulations, Food & Drug Administration (FDA), Food and Beverage, Importer Safety, Manufacturer Product Safety, Private Labeler Product Safety, Product Liability, Supply Chain Risk Management

Although not quite meeting the deadline of October 31 established in a legal settlement last year, FDA has released a set of three more “foundational” Final Rules mandated by the Food Safety Modernization Act (FSMA or the Act). The Final Rules on Foreign Supplier Verification Programs, produce safety, and accredited third-party certification were released by… Continue Reading

CPSC & DOJ Stop Two Companies from Future Importation of Children’s Products with Far-Reaching Consent Decrees

Posted in Children's Products, Consumer Product Safety, Consumer Product Safety Commission (CPSC), CPSC Civil Penalties, CPSC Enforcement Actions, Federal Regulations, Importer Safety, Litigation, Manufacturer Product Safety, Product Liability

Earlier this week, the U.S. Department of Justice (“DOJ”)—at the behest of the CPSC—filed suit in California federal court against two companies and three individuals for importing products that violate the Federal Hazardous Substances Act (“FHSA”) and Consumer Product Safety Act (“CPSA”). The respective lawsuits can be accessed here and here. The individuals and companies—Brightstar… Continue Reading

U.S. House Passes GMO Labeling Legislation

Posted in Advertising, Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, Product Liability

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 Right to Know Act). Supporters of the… Continue Reading

Hidden Costs of Common Beauty Treatments?

Posted in Consumer Product Safety, Drugs & Cosmetics, Food & Drug Administration (FDA), Litigation, Manufacturer Product Safety, Product Class Actions, Product Liability, Retailer Product Safety, State Consumer Protection Laws

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 Times exposé on the health conditions affecting… Continue Reading

What is CPSC’s Fast Track Recall Program and When Should Companies Utilize It?

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), CPSC Product Recalls, Manufacturer Product Safety, Private Labeler Product Safety, Product Liability, Retailer Product Safety, Supply Chain Risk Management, Voluntary Recalls

So what is the CPSC’s “fast track recall” program and what is the benefit of participating in it? What is a “stop sale notice” and why does the CPSC generally request it for fast track recalls? What else is required by the CPSC in order to participate in the program and what are the potential… Continue Reading

Toy Safety Regulation Should Be Left To The Federal Government

Posted in Children's Products, Consumer Product Safety, Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA), Litigation, Product Liability, State Consumer Protection Laws, State Product Safety Laws, State Regulations, U.S. Congress

[This article originally appeared on Law360.com on June 23, 2015.] On June 2, 2015, the Suffolk County Legislature became the latest county legislature in New York to pass a “toxic-free toys” act. About a week later, the New York City Council got in on the action and introduced a similar bill. Since the beginning of… Continue Reading

CPSC Files Suit for Second Time in Three Months against a Company for Alleged Failure to Timely Report Defective Product

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

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 court against a company for an alleged… Continue Reading

California Appellate Court Takes on Proposition 65 Warning Triggers

Posted in Children's Products, Distributors, Food and Beverage, Litigation, Manufacturer Product Safety, Product Liability, Prop 65, Retailer Product Safety, State Consumer Protection Laws, State Product Safety Laws, State Regulations, Supply Chain Risk Management

Recent attempts to modify California’s Safe Drinking Water and Toxic Enforcement Act of 1986, Proposition 65, have been the work of the California Legislature.  (See A Sane Tweak To Proposition 65 and California Reenters the GMO Food Labeling Arena – This Time Through The Legislature).  This past week, however, the California Appellate Court for the… Continue Reading

GAO Releases Report on CPSC Response to New and Emerging Hazards

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), CPSC Enforcement Actions, Federal Regulations, Importer Safety, Manufacturer Product Safety, Product Liability, Retailer Product Safety, Supply Chain Risk Management, U.S. Congress

On October 14, the Government Accountability Office (GAO) published a report entitled “Consumer Product Safety Commission: Challenges and Options for Responding to New and Emerging Risks.”  The report analyzes the timeliness of the Consumer Product Safety Commission’s (CPSC) response to “new and emerging” safety risks from new or existing consumer products.  It is based upon… Continue Reading

Guilty Convictions in Salmonella Trial May Signify Landmark in Criminal Food-Safety Prosecutions

Posted in CPSC Civil Penalties, CPSC Enforcement Actions, CPSC Product Recalls, Federal Regulations, Food & Drug Administration (FDA), Food and Beverage, Litigation, Manufacturer Product Safety, Product Liability, State Product Safety Laws, State Regulations, Uncategorized

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 and safety are at play… On Friday, September 19, 2014, a federal… Continue Reading

California Supreme Court Considers Component Parts Doctrine

Posted in Consumer Product Safety, Distributors, Litigation, Manufacturer Product Safety, 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… Continue Reading

Buzzsaw or SawStop: Are You Prepared to Avoid Antitrust Liability in the Product Safety Arena?

Posted in Consumer Product Safety, Litigation, Product Liability, Voluntary Standards

Written by: Chuck Samuels and Helen Kim 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… Continue Reading

California Names First Consumer Products for Green Chemistry “Priority Products” List

Posted in Product Liability, Prop 65, State Consumer Protection Laws, State Product Safety Laws, State Regulations, Supply Chain Risk Management

Recently, we have informed our readers of product safety legislative and regulatory initiatives, including green chemistry programs, driven at the state level.  One of these important state regulatory initiatives is California’s Green Chemistry Initiative.  California’s “Safer Consumer Products” regulations seek to reduce toxic chemicals in consumer products by establishing a process whereby manufacturers of certain… Continue Reading

Down the Rabbit Hole: Primary Jurisdiction Redux

Posted in Advertising, Consumer Product Safety, Drugs & Cosmetics, Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, Product Liability, State Consumer Protection Laws

“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.’” While perhaps not as far down the rabbit hole as Alice was, the Courts within the Northern District of California are decidedly split on whether to use the… Continue Reading

Product Liability Lawyers at the Drawing Board: Risk Assessment Begins at the Beginning

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA), Manufacturer Product Safety, Product Liability

I used to jokingly tell people that when I moved from design engineering into the law I went from the most productive field in the world to the most counter-productive field.  This joke plays on the common misconception that lawyers are risk-averse naysayers who stifle innovation and focus on how your products and innovations are… Continue Reading

No CPSC Enforcement Can be Admissible Evidence in a Products Liability Case

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), CPSC Enforcement Actions, Federal Regulations, Litigation, Product Liability, State Consumer Protection Laws

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 design, manufacturing or failure to warn claim… Continue Reading

Admissibility of Plaintiffs’ Conduct in a Products Liability Case

Posted in Consumer Product Safety, Litigation, Manufacturer Product Safety, Product Liability

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 damage. But, in the product liability context a… Continue Reading

“Natural” Labeling on the Decline?

Posted in Advertising, Consumer Product Safety, Drugs & Cosmetics, Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Liability

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 regulatory guidance on the term.  It will… Continue Reading

The Food Court Kicks the Proper Use Of The Term “Natural” To FDA

Posted in Advertising, Drugs & Cosmetics, Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Liability, State Consumer Protection Laws, State Unfair Competition Laws

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 a recent ruling on a motion to… Continue Reading

The GMO Controversy Continues to Swirl

Posted in Advertising, Drugs & Cosmetics, Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, Product Liability

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 fields, stiff-legged and neck-bolted. Several states have… Continue Reading