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

Auburn Courthouse Prop 65Recent 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 First District in Environmental Law Foundation (ELF) v. Beech-Nut Nutrition Corp., 2015 B.L. 72035, (Cal. Ct. Ap., No. A139821, 3/17/15) upheld a trial judge who determined, after entertaining extensive expert testimony, that low levels of lead in products including baby food, fruit juice and packaged food do not produce exposures that trigger a requirement for warnings under Proposition 65.

The Beech-Nut case is one of the few situations where a Proposition 65 plaintiffs’ group has had to litigate what triggers a requirement for warnings under the law.  In this case, the court held that the manufacturers met their burden of proof.

Underlying Action:

Continue Reading California Appellate Court Takes on Proposition 65 Warning Triggers

Written by: Alice Kilpatrick

The European Chemicals Agency (ECHA) has adopted a proposed restriction of lead in consumer articles. Specifically, the restriction proposal aims to reduce children’s exposure to lead from putting consumer products in their mouth.

Sweden first proposed the restriction, noting that 1 in 10 of the items that children put in their mouths contain lead at an average concentration of 1 percent. According to the proposal: Continue Reading EU Moves Forward with Restriction on Lead in Consumer Products

This month marks the five year anniversary of the enactment of the Consumer Product Safety Improvement Act of 2008 into law.  Commonly referred to as the “CPSIA,” the law has had a dramatic impact over the past five years on all firms involved in manufacturing, importing and selling consumer products.  Passed by Congress in the wake of the “year of the recall” (2007), the CPSIA touches most consumer products under the jurisdiction of the U.S. Consumer Product Safety Commission (“CPSC”).  The law has had the most impact on companies involved with making or selling children’s products.

Readers of this blog are likely well-aware by now of the law’s new mandates for both general-use and children’s products regarding testing and certification, tracking labels for children’s products, lead paint and content limits for children’s products, ban on phthalates for toys and child care articles, and establishment of a public product safety database for consumers to exchange safety information and report incidents to the CPSC (saferproducts.gov).  These are only a small handful of new requirements imposed upon the consumer products industry by the law.

Here at Mintz Levin, we have seen a noticeable uptick in product safety awareness and a desire among firms manufacturing, selling and importing consumer products to enact safety compliance monitoring programs and response policies and procedures for their product lines.  In fact, it has been our pleasure over the past five years advising clients on the ever-changing landscape of federal, state and international product safety law, and best practices to ensure the continued safety of their products, specifically in light of the CPSIA’s passage.

Our colleague, Matt Howsare, former Chief of Staff of the CPSC, recently commented to Law360 on the effect of the CPSIA on industry, including the legal industry.  Make sure to check it out this informative article!

The U.S. Consumer Product Safety Commission (CPSC) announced recently that it stopped 4.8 million units of products at multiple ports of entry that violated product safety rules or were deemed to be hazardous.  The units were seized during the Commission’s last fiscal year (October 2011 to September 2012). This announcement comes as no surprise to those of us following state, federal and international product safety developments. The CPSC, with the full cooperation of U.S. Customs and Border Protection (CBP), has intensified its efforts since the passage of the Consumer Product Safety Improvement Act of 2008 (CPSIA) to identify violative products at our borders.

Specifically, the CPSC screened more than 18,000 different imported consumer products. About 1,500 of those products were found to be violative and prevented from moving into the U.S. stream of commerce. While manufacturers and importers of all consumer products must remain vigilant of applicable safety standards, those who deal in “children’s products” (products designed or intended primarily for ages 12 years and under) have attracted the most attention from the CPSC’s Office of Import Surveillance. As the CPSC’s news release notes, children’s products with lead levels exceeding federal limits continue to be at the top of the list when it comes to seizures. Other federal standards that are strictly enforced include toys and other articles with small parts for children younger than 3 and child care articles with excessive amounts of phthalates (chemical plastic softeners).

The safety of consumer products is receiving more scrutiny from federal and state governments and the CPSC is assessing higher penalties throughout the distribution chain for violations of regulatory requirements. Ensuring compliance during the design and manufacturing stage of your product is key to preventing violations and problems at the border.

Written by: Matt Howsare and Shoshana Speiser

When you board a ride at an amusement park, the question of who regulates the ride vs. the toy you just won is probably the last thing on your mind.

After last month’s tragic death on the Texas Giant rollercoaster at Six Flags, however, nationwide attention and scrutiny has focused on the U.S. Consumer Product Safety Commission’s (CPSC) lack of jurisdiction over “fixed-site” amusement park rides. This jurisdictional carve out occurred in 1981 when the U.S. Congress stripped the CPSC of its jurisdiction over these rides through amendments to the Consumer Product Safety Act. As a result, rides that are “permanently fixed to a site” are only subject to voluntary standards written by the ASTM F-24 Committee on Amusement Rides and Devices and a patchwork of state-specific regulations.

Describing the CPSC as lacking jurisdiction over “fixed-site amusement parks” altogether, however, would be inaccurate. The CPSC’s jurisdictional limitation for amusement parks only extends to the actual rides. Almost all other products, including many of the items sold inside of stores and game prizes, fall under CPSC’s jurisdiction. This includes the abundant supply of children’s products and toys found in amusement parks, which must comply with lead content/paint and phthalate limits, the ASTM F963 toy standard, requirements for tracking labels, the third party testing and certification regulations, and other requirements associated with the Consumer Product Safety Improvement Act.

Continue Reading Six Flags Rollercoaster Tragedy Highlights Sometimes Confusing Nature of CPSC’s Jurisdiction