In September 2019, the FDA sent warning letters to three tattoo ink manufacturers about microbial contamination in the products. The agency conducted microbial analysis of tattoo ink samples collected from customers around the country.

The warning letters noted that the tattoo inks contained pathogens and microorganisms that rendered them adulterated under the Federal Food Drug & Cosmetic Act (FFDCA). The agency regulates tattoo inks as “cosmetics” under the FFDCA because the inks are introduced into the body to “promot[e] attractiveness” or “alter[] the appearance.” See 21 U.S.C. § 321(i). Continue Reading FDA Issues Warning Letters Regarding Adulterated Cosmetics

Earlier today, the Supreme Court denied a petition filed by Domino’s Pizza asking the Court to decide whether Title III of the Americans with Disabilities Act (ADA) applies to websites and mobile apps. As we’ve previously discussed, the U.S. Court of Appeals for the Ninth Circuit issued a decision in January of this year holding that companies whose online activities share a nexus with physical places of public accommodation may be held liable under the Title III for failing to make their websites and apps accessible to persons with disabilities, and that the absence of formal web accessibility regulations implemented by the Department of Justice does not raise due process concerns. The Supreme Court’s denial of Domino’s appeal means that the Ninth Circuit decision stands. The case is to be remanded to the U.S. District Court for the Central District of California, which will have to decide in the first instance whether Domino’s website and app satisfies the ADA. The Supreme Court’s decision leaves unresolved a long-standing circuit split concerning the applicability of the ADA to the Internet, and will no doubt attract further web accessibility suits by disability rights advocates and private plaintiffs.

On June 28, the Ninth Circuit adopted the California Supreme Court’s McGill rule in Blair v. Rent-a-Center, Inc., 928 F.3d 819 (9th Cir. 2019).  In Blair, the Ninth Circuit held the McGill rule to be consistent with the Federal Arbitration Act (“FAA”), and therefore not preempted by the federal statute.

The McGill rule was the result of a decision by the California Supreme Court in which it held  that a consumer credit card agreement waiving the consumer’s right to seek public injunctive relief violated California Civil Code § 3513.  Section 3513 provides that “a law established for a public reason cannot be contravened by a private agreement.”  Blair, 928 F.3d at 824.  Several California consumer protection statutes explicitly provide consumers with the right to pursue a public injunctive remedy. Continue Reading The Ninth Circuit Ratifies California’s McGill Rule: Consumers Cannot Waive Statutory Rights to Seek a Public Injunction via Arbitration Agreement

On August 7, 2019, the Federal Trade Commission convened an all-day workshop to discuss consumer protection issues associated with “loot boxes”—randomized virtual items players can purchase or earn in video games. While the production cost of video games has increased significantly, the average price of console games has largely not changed since the 1970s, and many mobile games are free to download. Panelists observed that loot boxes have helped bridge the gap between this high cost of video game production and their relatively flat sale price. Continue Reading Video Game Loot Boxes: FTC Workshop on the Role of Virtual Rewards in Game Play

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