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Key takeaways:

  • A recent report from the House of Representatives has motivated nearly 100 false advertising cases against baby food manufacturers.
  • The cases allege that the companies sold food containing heavy metals and failed to disclose that fact.
  • The filings have prompted Food and Drug Administration and Congressional action on heavy metals in baby food and may invite additional scrutiny from regulators and plaintiffs’ counsel on trace substances in consumer product goods, beyond baby food.

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Continue Reading Nearly 100 Cases Claim That Baby Food is Tainted With “Dangerous Levels” of Heavy Metals; Here’s What You Need to Know

Class action plaintiffs filed a lawsuit in February against Gojo Industries, Inc., the maker of Purell hand sanitizers, alleging that Gojo’s marketing and advertising claims on its website and social media accounts give consumers the impression that Purell products “are effective at preventing colds, flu, absenteeism and promoting bodily health and increased academic achievement.”

This lawsuit follows a January 17, 2020 warning letter sent by the Food and Drug Administration (FDA) to Gojo regarding the same claims. In the letter, the FDA warned Gojo that claims that Purell products “are effective in preventing disease or infection from pathogens such as Ebola, MRSA, VRE, norovirus, flu, and Candida auris, and in preventing the spread of infection” implies that their products are FDA-approved drugs. Similarly, the FDA states that claims that Purell products “are effective in reducing illness or disease-related student and teacher absenteeism” are unsubstantiated.
Continue Reading Lawsuit Filed Against Makers of Purell For Hand Sanitizer Disease Prevention Claims

With increasing attention to lawsuits based on “natural” claims, some litigants have also challenged claims that products were “100% pure.”  Many suits have attempted to use findings of chemical or pesticide residue to attack a product’s marketing regarding its purity.

While the Food and Drug Administration is yet to provide clear guidance on the term…

Takeaways:

  • Recent detection of cosmetic products containing asbestos has led to voluntary recalls of five products so far this year.
  • At present, the FDA does not have mandatory recall authority over cosmetic products.
  • The FDA and Congress are contemplating proposals concerning the cosmetics industry that may lead to further enforcement activity in this sector.

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Continue Reading Talc, Asbestos, and FDA Regulation of Cosmetics

Takeaway: The U.S. Supreme Court ever so slightly trimmed removal rules under the Class Action Fairness Act (CAFA) last week in Home Depot U.S.A., Inc. v. Jackson, No. 17-1471. In an opinion by Justice Thomas, the Court held that neither CAFA nor the general removal statute (28 U.S.C. § 1441(a)) permit removal by a third-party counterclaim defendant. That is, a party brought into the suit through a claim filed by the original defendant cannot remove the case to federal court.
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Continue Reading Supreme Court Holds Third-Party Defendant Can’t Remove Class Actions Under CAFA

The United States Supreme Court recently held that classwide arbitration cannot be inferred from an ambiguous agreement.  The Supreme Court’s decision reverses a Ninth Circuit decision that relied on state contract principles to compel classwide arbitration of a putative class action filed by an individual employee.

In Lamps Plus, Inc. v. Varela, __ U.S. __ (April 24, 2019), the Court considered whether the Federal Arbitration Act (“FAA”) forecloses interpretation of an ambiguous arbitration agreement compelling classwide arbitration.  The Ninth Circuit affirmed the trial court’s determination that an agreement that stated “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings” was ambiguous as to whether it authorized class arbitration.  Applying California state contract principles to construe the agreement against the drafter, the Ninth Circuit held there was sufficient ambiguity to conclude the parties agreed to class arbitration.
Continue Reading Supreme Court Holds That Class Arbitration Cannot Be Inferred from Ambiguous Agreement

In the wake of the D.C. Circuit’s opinion vacating the Federal Communications Commission’s order interpreting the Telephone Consumer Protection Act (TCPA), federal courts have disagreed on how to define an “automated telephone dialing system” (“autodialer”) under the statute. Judge Edmond E. Chang of the U.S. District Court for the Northern District of Illinois recently stepped into the fray, holding in Gadelhak v. AT&T Service, Inc., that equipment qualifies as an autodialer only if it has the (present) capacity to generate numbers randomly or sequentially.
Continue Reading New TCPA Ruling Holds an Autodialer Must Have the Capacity to Generate Numbers Randomly or Sequentially

On December 29, 2018, Google won summary judgment in Rivera v. Google, a privacy class action alleging violations of the Illinois Biometric Information Privacy Act (BIPA). The case involved “face grouping,” a feature that enables Google Photos to automatically sort and group the photographs in a user’s private account based on visual similarities between…

The Ninth Circuit recently denied a motion for rehearing en banc in Marks v. Crunch, leaving in place a Ninth Circuit decision that broadly defines “automated telephone dialing system” (“autodialer”) under the Telephone Consumer Protection Act (“TCPA”). The decision conflicts with decisions from other circuits.  And in the New Year, the FCC is expected to issue its own new interpretation of the term “autodialer” under the TCPA. Amidst this uncertainty, companies should proceed cautiously when reaching consumers by phone or text, and should consider how to minimize risk with respect to the TCPA’s autodialer provisions.
Continue Reading Ninth Circuit Interprets Automatic Telephone Dialing System under TCPA, Leaving Circuit Split