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 “natural,” numerous courts have found that a reasonable consumer would not expect such product claims to exclude synthetic molecules in innocuous amounts.

More information about putting “pure” claims in context is available over at Food Litigation News:  https://www.foodlitigationnews.com/2019/08/industry-insights-putting-pure-claims-in-context/

The Federal Trade Commission (FTC) and self-regulatory bodies such as the Electronic Retailing Self-Regulation Program (ERSP) have their attention focused on social media influencers. In a recent decision involving Alo, LLC—the company behind Alo Yoga, a popular purveyor of yoga-related merchandise—ERSP reviewed approximately 60 private Instagram accounts containing endorsements for Alo Yoga’s products. ERSP’s message to advertisers is a familiar one: influencers and endorsers with a material connection to the advertiser must disclose such connection and brands must institute good training and monitoring processes to encourage such disclosures.

Continue Reading ERSP Reminds Brands to Disclose Connections with Ambassadors

On July 31, Dr. Scott Gottlieb, the outgoing FDA commissioner, published an editorial in which he proposed how the FDA could expedite approval of food and beverage products that contain cannabidiol (CBD).           

In this update, we review Dr. Gottlieb’s proposal which highlights areas of concern for business involved in the CBD industry, such as labeling and deceptive marketing.

Read the full update on PerkinsCoie.com.

Against the background of lawsuits and debate about the role of communications service providers in moderating speech on their platforms, the U.S. Supreme Court has weighed in, affirming that private entities that host forums for speech are not state actors subject to constitutional requirements.

The Decision

In a 5-4 decision by Justice Kavanaugh, the Court held in Manhattan Community Access Corp. v. Halleck, 587 U.S. __ (2019) that a private, nonprofit corporation operating a public-access TV channel is not a state actor subject to the First Amendment. Producers of public access programming had claimed the channel was a state actor that violated their First Amendment rights after it suspended them from its services due to their films’ content. The Court disagreed. Continue Reading SCOTUS: Private Entities Operating Forums for Speech Are Not State Actors

Businesses that market and sell to consumers are heavily focused on navigating federal and state legal issues related to advertising, privacy, promotions, products liability, government investigations, unfair competition, class actions and general consumer protection. The California Consumer Privacy Act (CCPA) has introduced a series of robust obligations for brick and mortar businesses that collect personal information about those consumers, which creates numerous compliance challenges. These businesses – most commonly retailers and the hospitality industry – can minimize legal risk by understanding their data environment and the specific compliance obligations of the company.

Join us for CCPA Week: A series of webinars hosted by Perkins Coie’s Privacy & Data Security practice focused on getting your business ready to comply with this enigmatic statutory scheme. One webinar, in particular—How California’s New Privacy Law Impacts Brick-and-Mortar Businesses—will explore how the CCPA differs from the GDPR and how retailers can leverage existing compliance initiatives and governance programs to prepare for compliance.

Register here for the entire series, or select the brick-and-mortar-specific webinar from the list of topics that will be presented.

How California’s New Privacy Law Impacts Brick-and-Mortar Businesses
Date: Wednesday, July 17, 2019
Time: 10:00 a.m. PT | 12:00 p.m. CT | 1:00 p.m. ET

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.

Continue Reading Talc, Asbestos, and FDA Regulation of Cosmetics

On the heels of three FTC consent decrees involving the Consumer Review Fairness Act (CRFA), the FTC has brought two more CRFA-related complaints against home-rental businesses.

Broadly speaking, the CRFA, which became effective in 2017, makes it unlawful for a business to prohibit its customers from being able to post negative reviews online. As predicted, we are seeing an increase in FTC enforcement of the CRFA in 2019. Continue Reading FTC Enforcement of the CRFA is Underway

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.

Continue Reading Supreme Court Holds Third-Party Defendant Can’t Remove Class Actions Under CAFA

California’s new Autobot Law, Cal. Bus. & Prof. Code § 17940, et seq. (SB 1001), which goes into effect July 1, 2019, may affect businesses that use chatbots to interact with customers online. As the nation’s first autobot regulation, SB 1001 makes it unlawful “to use a bot to communicate or interact with another person in California online, with the intent to mislead the other person about its artificial identity for the purpose of knowingly deceiving the person about the content of the communication in order to incentivize a purchase or sale of goods or services in a commercial transaction or to influence a vote in an election.”

We detail the background, disclosure requirements and enforcement mechanism for this new Autobot Law.

Read More