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Making the Case for the Long-Term Benefits of Corporate Sustainability Pledges

During Steve Poplawski’s June presentation at the Chemical Industry Council of Illinois’ Hot Topics conference on the opportunities and challenges presented by current efforts to make the life cycle of plastics more sustainable, one of the challenges raised by the audience was whether corporate sustainability pledges to improve packaging were getting ahead of consumer acceptance. An article published by WasteDive focusing on McDonald’s green pilot restaurants in Canada, suggests there is a business case for risking being ahead of consumer acceptance on this issue as a way of being ahead of an inevitable curve promoted by efforts like Yelp’s piloting of sustainability scoring at restaurants.

In speaking to over 200 EHS professionals in Kansas City in April, Steve made a similar argument on doubling down on sustainability.  In that presentation, Steve made the case that it was to every company’s advantage to develop and own their individual corporate sustainability

U.S. Supreme Court Strikes Down Bar on “Immoral or Scandalous” Trademarks

On June 24, 2019, the U.S. Supreme Court struck down as unconstitutional the Lanham Act’s “immoral or scandalous” prohibition on trademark registration.  In Iancu v. Brunetti, the Court held—in context of Brunetti’s failed attempt to register the trademark “FUCT” for use in connection with a clothing line—that the noted provision violates the First Amendment because it “disfavors certain ideas.”  In doing so, the Supreme Court built on its holding in Matal v. Tam, 137 S. Ct. 1744 (2017), that the Lanham Act’s bar on the registration of “disparag[ing]” trademarks was invalid under the First Amendment as a viewpoint-based restriction.  Tam involved the use of the slur “Slants” as the name and trademark of an all-Asian American musical group.

Justice Kagan, who authored the Brunetti majority opinion, noted that the U.S. Patent and Trademark Office (PTO) had found that “FUCT” met its test for “immoral or scandalous” marks, in

California Prop. 65 Regulation Exempts Certain Coffee Chemicals From Cancer Warning; Stay in Coffee Case Lifted

June 26, 2019

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California’s Office of Environmental Health Hazard Assessment (“OEHHA”) has finalized a highly anticipated Proposition 65 regulation relating to coffee. The regulation, California Code of Regulations Section 25704, takes effect October 1, 2019. Section 25704 provides: “Exposures to chemicals in coffee, listed on or before March 15, 2019 as known to the state to cause cancer, that are created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.”

As we previously reported, OEHHA issued a notice of proposed rulemaking concerning the regulation in June 2018. The Office of Administrative Law approved adoption of the regulation on June 3, 2019, and OEHHA issued a Final Statement of Reasons on June 7.

OEHHA’s Final Statement of Reasons concludes that “the weight of the evidence from the very large number of studies in the scientific literature does not support

Domino’s Petitions Supreme Court for Review of Unfavorable Website Accessibility Decision

Domino’s Pizza LLC has submitted a petition asking the U.S. Supreme Court to review and reverse a decision from the Ninth Circuit Court of Appeals that allowed a website accessibility case to proceed against Domino’s. The question presented to the Supreme Court by Domino’s is“[w]hether Title III of the ADA requires a website or mobile application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities.” Domino’s Pizza LLC v. Guillermo Robles, Petition for a Writ of Certiorari, at 2.

As we previously reported, in June 2019, the Ninth Circuit held in Robles v. Domino’s Pizza, LLC, that the ADA applies to the Domino’s website and mobile application, rejecting the due process and primary jurisdiction arguments that had led the district court to stay the action.

Title III of the ADA applies to “physical places of public accommodation.”   42 U.S.C.

Nevada Beats California to the Punch — New Privacy Requirements To Take Effect in October

On May 29, 2019, Nevada adopted Senate Bill No. 220 emulating portions of the California Consumer Protection Act (“CCPA”) with respect to permitting individuals to opt out of the sale of their personal information.  While Nevada may be the second state to pass legislation on the sale of personal information, its bill will be the first to go into force.  SB 220 goes into effect October 1, 2019, before the CCPA’s current compliance deadline of January 1, 2020.

The net result is that companies that thought they had until the end of the year (or until the California Attorney General could bring an enforcement action in July of 2020) to fully comply with the opt-out-of-sale portion of the CCPA, may need to address the issue now in order to meet Nevada’s October deadline.

While the Nevada law does not expressly require notice to individuals of this right in the privacy policy like the

New York District Court Addresses Mootness Argument in Website Accessibility Case

As businesses continue to face lawsuits and demand letters alleging that their websites are inaccessible to blind and deaf patrons in violation of the Americans with Disabilities Act (“ADA”), courts across the country continue to weigh in on the issue.  On Tuesday, June 4, 2019, the United States District Court for the Southern District of New York issued a decision in Diaz v. The Kroger Co. – holding that the Court lacked both subject matter and personal jurisdiction over the case because the complaint had been rendered moot by modifications defendant made to the website and because the defendant did not sell goods or services in New York.  Diaz v. The Kroger Co., Case No. 18-cv-07953, Opinion and Order [Dkt. No. 35]. 

In Diaz, the plaintiff, a visually-impaired and legally blind individual who resides in the Bronx, New York, alleged that the website of defendant Kroger, a supermarket chain with

APIs Have Broad Applications, From E-Commerce to Payroll Management

June 3, 2019

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This post is the second in a two-part series concerning emerging uses and considerations involving application programming interfaces, or “APIs.”    

Most retailers and other large and mid-size businesses, and even some small businesses, utilize public APIs:

  • Businesses who vet their employees against a government database may be doing so through an API.
  • Businesses that rely on vendors to provide data or electronic services (such as HR and payroll management) may be receiving them through APIs.
  • Businesses that maintain databases associated with their website or applications, likely communicate with that database through an API.
  • Businesses that provide electronic data or electronic services are likely doing so through an API.  When the API license is presented as a take-it-or-leave-it agreement, the terms are often written to protect the provider from any liability for an offering from which the provider derives no direct financial benefit.

Still, regardless as to whether

Retailers Should Consider Whether Behavioral Advertising Is Sale of Information Under CCPA

The California Consumer Privacy Act (“CCPA”) was enacted in early 2018 as a political compromise to stave off a poorly drafted, and plaintiff’s friendly ballot initiative.  Although the CCPA is scheduled to go into force in early 2020, there is a great deal of confusion regarding the requirements of the CCPA, including the degree to which it aligns with other privacy regulations such as the European General Data Protection Regulation (“GDPR”).

To help address that confusion, BCLP published the California Consumer Privacy Act Practical Guide, and is publishing here a multi-part series that discusses the questions most frequently asked by retailers concerning the CCPA

Q. If a website participates in behavioral advertising, does the CCPA require that it disclose that it is “selling” consumers’ information?

The California CCPA requires that a business that “sells” personal information disclose within its privacy policy a “list of the categories of personal information it has sold about

Retailers Should Consider Potential Rewards and Risks of Using APIs

May 14, 2019

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Application programming interfaces, or “APIs,” have become a critical part of ecommerce, and retailers are increasingly finding new and creative ways to use APIs to enhance their offerings and their business.  For example, Kroger deploys an API with information about its groceries, locations, coupons, and loyalty programs.  BestBuy similarly offers APIs to third parties, including one for recommended purchases.  LensCrafters, Williams-Sonoma, and other retailers have further deployed APIs to expand consumer access to their information.  Still, many other retailers are connecting to PayPal and other fintech companies to provide multiple secure checkout options.

This post is the first in a two-part series concerning emerging uses and considerations involving APIs.

The provision of public APIs has exploded in recent years amid ecommerce. More than 60 percent of eBay listings are added via API.  At least 50 percent of Salesforce transactions are via APIs.  Ecommerce service companies Shopify

New California Law Requires Collection of Sales Tax From Third-Party Online Retailers

Under a new California law signed by Governor Gavin Newsom on Thursday, out-of-state online retailers that make more than $500,000 from California sales must collect sales tax from their California customers.

Although the largest online retailers already collect California sales tax, smaller retailers that sell through the sites have not paid state taxes until recently.  The new law clarifies that online sales platforms must collect tax for products sold on their websites even if they come from so-called third-party retailers, but provides an exemption for out-of-state retailers that make less than $500,000 from California sales.

As we previously reported, the U.S. Supreme Court held in South Dakota v. Wayfair that states can tax purchases from out-of-state sellers.  After that ruling, numerous states, including California, took steps to begin collecting sales tax from out-of-state retailers.

On April 1, California started requiring out-of-state retailers to register with the state and begin charging

CPSC Notifies Consumer Product Manufacturers of Possible Data Breach of Safety Information

A number of retailers and manufacturers have recently received notices from the U.S. Consumer Product Safety Commission concerning a possible data breach. The CPSC’s letter advises recipients of an unauthorized release of confidential information that did not go through the procedures of 15 U.S.C. § 2055, also known as “Section 6(b)” of the Consumer Product Safety Act (CPSA).

Section 6(b) is intended to encourage candor between the CPSC and regulated companies, by assuring that sensitive information will be handled under procedures intended to ensure the accuracy and fairness of any disclosure.  Section 6(b) restricts the CPSC’s public disclosure of manufacturer and product specific information, and applies to information from which the public can readily determine the identity of a manufacturer.

The breach appears to concern a mass inadvertent disclosure of nonpublic manufacturer and product specific information.  It appears the information could have been released months ago, but the CPSC only recently

EPA Announces Action Plan for Two PFAS, Including in Consumer Products

PFAS are currently the subject of significant regulatory action, research, litigation, and public debate based on recent reports which claim that two PFAS, Perfluorooctanoic Acid (“PFOA”) and Perfluorooctane Sulfonate (“PFOS”), that were formerly used in a variety of industries may be carcinogens or reproductive toxicants. Several states have begun investigating and regulating the levels of PFAS in drinking water, and in some cases, for example Minnesota and New York, have sued manufacturers of the chemicals themselves or products that historically contained PFOA and PFOS, bringing claims for the recovery of natural resource damages, trespass, nuisance, and negligence.

EPA has historically addressed these chemicals through a stewardship program under which the companies that manufactured PFOA and PFOS agreed to voluntarily stop their production, and companies that used PFOA and PFOS agreed to stop importing them. Now, however, Acting Administrator Wheeler is under increasing bipartisan pressure to take federal regulatory action.

Into the

Labor Department Proposes Changes to Minimum Salary for Overtime Exemptions

The United States Department of Labor has issued a notice of proposed rulemaking that would change the minimum salary levels necessary for an employee to be properly classified as exempt from the overtime compensation requirements of the Fair Labor Standards Act.  Under the proposed rule, the minimum salary for most exemptions would rise from $455 per week ($23,660 annualized) to $679 per week ($35,308 annualized).  The minimum annual compensation for the “highly compensated employee” exemption would rise from $100,000 to $147,414.

For employees in the executive, administrative and professional exemptions, the proposed rule would permit nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to ten percent (10%) of the required minimum salary.  In addition, provided that the employee has received at least ninety percent (90%) of the required minimum compensation in each payroll week for 52 weeks, the employer would be permitted to make a single “catch-up” payment

USDA and FDA to Jointly Regulate Cell-Cultured Food Products

The U.S. Department of Health and Human Services’ Food and Drug Administration (“FDA”) and the U.S. Department of Agriculture’s Food Safety and Inspection Service (“FSIS”) formally agreed on March 7 to share regulatory authority over cell-cultured meat products (“CCM”) derived from livestock or poultry.

As we previously reported, regulatory authority over CCM has been a much contested issue. FSIS purports to have jurisdiction over CCM under the Federal Meat Inspection Act (“FMIA”), while FDA purports to have jurisdiction under the Federal Food, Drug, and Cosmetic Act (“FFDCA”). Instead of battling over jurisdiction, the agencies have decided to collaborate – both will have oversight but at different stages of production. Essentially, FDA will oversee the initial stages of production, while FSIS will take on authority during cell harvesting.

While the details have yet to be refined, the agreement broadly allocates the agencies’ respective roles and responsibilities as follows:

Retailers Should Consider Impact of California Consumer Privacy Act on Employee Data

Retailers and other employers with operations in California should be aware of the potential application of the California Consumer Privacy Act (“CCPA”) to data collected about California employees.  Although the CCPA refers to “consumers,” as currently drafted the CCPA’s definition of a “consumer” also will apply to California-based employees.

As we previously reported, the CCPA grants consumers various rights with regard to their personal information held by businesses.  This is part of a multi-part series addressing frequently asked questions concerning the CCPA.

Which employers will have to comply with the CCPA?

Employers with employees in California will need to comply with the CCPA if their business falls into one of the following three categories:

  • Their business buys, sells, or shares the “personal information” of 50,000 “consumers” or “devices”;
  • Their business has gross revenue greater than $25 million; or
  • Their business derives 50% or more of its annual revenue from sharing
  • Avoiding the California Consumer Privacy Act Litigation Tsunami: What Does it Mean to “Do Business” in California?

    Companies that do business in California know that it is a magnet for class action litigation.  The California Consumer Privacy Act (“CCPA”), a new privacy law that applies to data collected about California residents, will provide even more incentive to plaintiff’s attorneys to bring suit in California.

    The CCPA was enacted in early 2018 as a political compromise to stave off a poorly drafted ballot initiative.  Although the CCPA is scheduled to go into force in early 2020, there is a great deal of confusion regarding the requirements of the CCPA, including the degree to which it aligns with other privacy regulations such as the European General Data Protection Regulation (“GDPR”).  To help address that confusion, BCLP is publishing a multi-part series to address the most frequently asked litigation-related questions concerning the CCPA.  BCLP is also working with clients to assess – and mitigate – litigation risks for when the CCPA goes

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