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Seattle Ban on Plastic Straws and Utensils Takes Effect

Seattle Ban on Plastic Straws and Utensils Takes Effect

July 20, 2018

Authored by: Bryan Cave and Merrit Jones

Seattle’s ban on plastic straws and utensils took effect on July 1, after the expiration of an exemption in a 2008 law requiring one-time-use food-service items to be compostable or recyclable.  The ban applies to food service businesses, including restaurants, delis, coffee shops, food trucks, cafeterias, and grocery stores.

Instead of providing plastic straws and utensils, on request, businesses may provide approved compostable alternatives for dine-in service, and compostable or recyclable take-out packaging. Though compostable plastic straws are allowed, environmental groups advocate using compostable paper-based straws. Flexible plastic straws can be provided to customers who need a straw because of medical reasons.

The law imposes fines of $250 on businesses that fail to comply. Other U.S. cities have considered similar bans on plastic straws. A similar ban in San Francisco passed a committee vote on Monday, and goes before the full board next week.

Seattle banned the use of Styrofoam packaging

INTA Offers Guide for Combating Counterfeit Sales

INTA Offers Guide for Combating Counterfeit Sales

July 20, 2018

Authored by: Bryan Cave and Katie Green

As retailers continue to battle the escalating problem of counterfeit products, The International Trademark Association (INTA) has released a guide titled Addressing the Sale of Counterfeits on the Internet.  The guide is the product of INTA’s Anti-Counterfeiting committee and aims to further the organization’s continuing efforts to curb the problem of online sales of counterfeit goods.

According to a 2017 impact study commissioned by INTA and cited in the guide, the global value of counterfeit and pirated goods was estimated to be $1.13 trillion in 2013 and is projected to reach $1.9-$2.8 trillion in 2022. Counterfeit sales not only harm businesses, but pose a risk to public health and safety and often fund criminal organizations.

INTA’s guide includes updated and expanded best practices for search websites, online market places, PSPs, trademark owners, and social media, logistics, and registry companies. The guide also includes the following key recommendations:

  • Search advertising

Supreme Court Holds American Express’s Antisteering Rules Don’t Violate Antitrust Laws

On June 25, 2018 the Supreme Court ruled, in a 5-4 decision, that American Express’s antisteering rules do not violate federal antitrust laws. In reaching this conclusion the Court determined that, for two-sided markets like credit cards, both sides of the platform must be analyzed when determining whether a practice has an anticompetitive effect. Because Ohio and the other states challenging American Express’s antisteering rules had focused only on the price increase on the merchant side of the two-sided market, and ignored the impact on cardholders, they did not carry their burden of showing that the antisteering rules resulted in anticompetitive pricing, i.e., that the antisteering rules had an adverse effect on the market as a whole. Specifically, the plaintiffs had not accounted for the consumer side of the market, which the Court found must be considered in determining the competitive impact of American Express’s antisteering rules.

At issue in

Battle Heats Up Concerning Regulatory Jurisdiction Over Cultured Meat Products

The next wave of emerging agricultural biotechnology is set for its first regulatory showdown. Cell-cultured meat (“CCM”) allows your steak to be grown in a lab by replicating animal cells.  Some CCM products are even created using synthetic products derived from plants, insects, and other non-animal proteins.  No matter the type of culture used, CCM products are created without animals born, raised, and slaughtered in the traditional manner.  Advocates of this emerging industry have coined the term “clean meat,” but many in the conventional meat food industry feel it should not be called “meat” at all.

On February 9, 2018, the U.S. Cattlemen’s Association (“USCA”) filed a petition with the U.S. Department of Agriculture (“USDA”) requesting that USDA invoke its jurisdiction over CCM and mandate that such products not be allowed to use “meat” or “beef” in their labeling.  Indeed, the USCA asserts that such terms should be associated

Coffee Defendants Likely To Seek Stay of Prop. 65 Action Following OEHHA’s Proposal to Exempt Coffee From Cancer Warning Requirement

July 3, 2018

Categories

Defendants in the Proposition 65 case against Starbucks and numerous other coffee manufacturers and retailers have indicated that they intend to file a motion to stay that action following a proposal by the California agency that administers Prop. 65 to exempt coffee from the cancer warning requirement for certain types of exposures.

Judge Elihu Berle has issued an order in Council for Education and Research on Toxics v. Starbucks, et al., Los Angeles Superior Court Case No. BC435759, setting a hearing date on defendants’ contemplated request for a stay of the action for July 31 – the same day as the hearing on the plaintiff’s motion seeking a permanent injunction which could potentially result in defendants being required to sell their coffee products with a Prop. 65 warning in California.

On June 15, California’s Office of Environmental Health Hazard Assessment (OEHHA) issued a notice of proposed rulemaking to exempt

California Enacts Sweeping Privacy Legislation Concerning Consumers’ Personal Information

California enacted privacy legislation yesterday that is the first of its kind in the United States and moves California law closer to the protections afforded in the European Union by the General Data Protection Regulation (GDPR).  The law also creates a private right of action to pursue a lawsuit against a company arising out of a breach of personal information, which will likely give rise to a substantial increase in data breach lawsuits in California. There is a lot to unpack in this new piece of legislation, which spans 28 pages and will engender various regulations before its January 2020 effective date.  The new law forestalls possibly more onerous requirements from a citizen ballot initiative.

Following is a breakdown of the new California Consumer Privacy Act of 2018.

How is this like the GDPR?

Like the GDPR, the California law defines “personal information” far more broadly than seen before in the

Eleventh Circuit Holds Prior Settlement Does Not Render New Website Accessibility Case Moot

The Eleventh Circuit Court of Appeals has held that a prior settlement agreement, pursuant to which a defendant has agreed to improve website accessibility, does not necessarily render moot a new website accessibility lawsuit.

In Haynes v. Hooters of America, LLC, Case No. 17-13170 (11th Cir. June 19, 2018), the Court of Appeals concluded that the “plaintiff’s claims are not moot” as a result of a settlement agreement between Hooters and a different plaintiff in an almost identical prior lawsuit that required Hooters to improve accessibility of its website within 12 months.

As we previously reported, the district court had granted Hooters’ motion to dismiss the action, on grounds that Hooters was in the process of actively implementing a remediation plan for its website, and therefore the prior agreement rendered the new ADA action moot.

The Eleventh Circuit rejected this argument, however, and held that “this case is

Supreme Court Overturns Quill, Holds States Can Tax Online Retailers Without Physical Presence

In a highly anticipated decision, the U.S. Supreme Court has ruled in South Dakota v. Wayfair, Inc., that internet retailers can be required to collect sales and use tax in states in which they lack a physical presence, overturning 26 years of precedent barring states from taxing out-of-state sellers.

As we previously reported, South Dakota brought the suit, acknowledging that its position defies the Supreme Court’s holding in the 1992 case Quill Corp v. North Dakota, by arguing that the development of the internet and ensuing growth in online shopping necessitate reconsideration of the requirement that a business have a physical presence within a state in order to be subject to that state’s sales tax collection obligations.

By a 5-4 vote, the court found for South Dakota, holding that the state’s 2016 law mandating that certain out-of-state sellers collect and remit tax regardless of whether they had a physical

Website Accessibility Guidelines Get Update; California Court Limits Penalties to One Visit

An update has been published to the Web Content Accessibility Guidelines (WCAG) 2.0, the standards that have been applied by many courts in the absence of website accessibility regulations by the Department of Justice.

The new version, named WCAG 2.1, was published on June 5 by the World Wide Web Consortium (W3C), an industry group of website accessibility experts.

WCAG 2.1 amends the prior standards, which were issued in 2008, by adding 17 additional criteria to address accessibility barriers.  The updates are mainly related to mobile devices and disabilities that affect vision and cognitive function.

For example, WCAG 2.0 did not expressly address mobile applications, although many of the same criteria for website accessibility was also applicable to mobile apps. WCAG 2.1 provides additional guidance concerning accessibility of mobile apps, including:

  • user interactions using touch,
  • handling more complex gestures, and
  • avoiding unintended activation of an interface.

FDA Extends Date for Compliance with New Nutrition Facts Label; Menu Labeling Rules Take Effect

The FDA has extended the date for compliance with the Nutrition Facts and Supplement Facts Label and Serving Size final rules.  As we previously reported, the rules were finalized in May 2016 and initially set a general compliance date of July 26, 2018. Manufacturers with annual food sales of less than $10 million were given an additional year to comply.

The FDA has now issued a Federal Register notice extending the compliance dates by “approximately 1.5 years.”

The Nutrition Facts labeling rules:

  • Require an updated “Nutrition Facts” label with dual-column labeling for certain containers;
  • Require mandatory declarations for “added sugars” in grams and as a percentage of Daily Value (% DV);
  • Update the list of declared nutrients. Disclosure of vitamin D and potassium will be required. Calcium and iron will continue to be required. Vitamins A and C will no longer be required but can be included on a voluntary basis.

What Questions Are In-House Counsel Asking Most About the GDPR?

The European Union’s General Data Protection Regulation (“GDPR”) is the most comprehensive – and complex – data privacy regulation in the world. As companies prepare for the GDPR to go into force on May 25, 2018, there continues to be a great deal of confusion regarding the requirements of the GDPR.

To help address that confusion, our firm’s Data Privacy and Security team has published a multi-part series discussing the questions most frequently asked about the GDPR.  You can find a link to each of the top 10 questions and answers (in the order of popularity) below:

  • Does the GDPR data breach notification provision cover the same type of data as United States data breach notification provisions?
  • What Does It Mean To Be “Established” In The EU?
  • Is a Service Provider’s Privacy Shield Certification Good Enough?
  • Are the Standard Contractual Clauses Enough?
  • Are Work
  • CPSC’s Expanded Prohibition on Phthalates in Children’s Products Set to Take Effect

    April 23, 2018

    Categories

    The Consumer Product Safety Commission’s (CPSC) final rule expanding phthalate restrictions in children’s toys and child care articles takes effect this week, on April 25, 2018.  The rule renews the ban on DEHP, DBP and BBP, makes the interim ban on DINP permanent, and adds four new phthalates to the list of banned phthalates in children’s products.

    Phthalates are a group of chemicals typically used to soften vinyl and other plastics and make them pliable and easier to grip and are found in numerous household products.   The final rule comes nearly a decade after CPSC first began to regulate phthalates over concerns that phthalates can act as endocrine disruptors.

    To recap, in 2008, Congress passed the Consumer Product Safety Improvement Act of 2008 (CPSIA), which prohibited toys and child care items containing the following three phthalates:

    • di(2-ethylhexyl) phthalate (DEHP);
    • dibutyl phthalate (DBP); and
    • butyl benzyl phthalate (BBP) .

    The CPSIA

    Supreme Court Hears Oral Arguments on State Taxation of Online Retailers

    The U.S. Supreme Court heard long-awaited arguments yesterday in South Dakota v. Wayfair, the case brought by the state against several retailers, hoping that the court will overturn over 25 years of precedent on the issue of the collection of sales tax from businesses located outside of the state.

    A transcript of the oral arguments is available here, and an audio recording will be available on the Supreme Court’s website this Friday.

    South Dakota brought the suit, acknowledging that its position defies the Supreme Court’s holding in the 1992 case Quill Corp v. North Dakota, by arguing that the development of the internet and ensuing growth in online shopping necessitate reconsideration of the requirement that a business have a physical presence within a state in order to be subject to that state’s sales tax collection obligations.

    Many await the high court’s decision, from numerous retailers, large and small,

    California’s Cage-Free Eggs Law Faces Supreme Court Challenge By Other States

    Briefing is now complete in a lawsuit filed by more than a dozen states asking the United States Supreme Court to block a California law requiring any eggs sold within the state to come from chickens that have sufficient space to stretch out in their cages.

    In the lawsuit, filed directly with the high court in December, Missouri, Iowa and 11 other states allege that “California has single-handedly increased the costs of egg production nationwide by hundreds of millions of dollars each year” due to its stringent regulations prohibiting confinement of egg-laying hens. The complaint contends that California’s requirements violate the Constitution’s interstate commerce clause. The lawsuit also alleges that California’s regulations are preempted by the Egg Products Inspection Act (EPIA), a federal law requiring uniformity of labeling, standards, and other provisions allowing for free movement of eggs and egg products in interstate commerce. To support their claims, plaintiffs rely

    FTC Warns Against Warranty Conditions That Violate Magnuson-Moss Warranty Act

    The FTC has sent warning letters to six major companies that market and sell automobiles, cellular devices, and video gaming systems warning against warranty tie-in provisions that state consumers must use specified parts or service providers to keep their warranties intact.

    Unless warrantors provide the parts or services for free or receive a waiver from the FTC, such statements generally are prohibited by the Magnuson-Moss Warranty Act, the federal law that governs consumer product warranties.

    Each company that received a warning letter used different language, but here are examples of questionable provisions:

    • The use of [company name] parts is required to keep your . . . manufacturer’s warranties and any extended warranties intact.
    • This warranty shall not apply if this product . . . is used with products not sold or licensed by [company name].
    • This warranty does not apply if this product . . .  has had

    D.C. Circuit Rejects FCC’s Interpretation of Automatic Telephone Dialing System Under TCPA

    April 6, 2018

    Categories

    As retailers continue to be sued for alleged violation of the Telephone Consumer Protection Act (“TCPA”), a long-awaited ruling by the D.C. Circuit on the FCC’s 2015 Declaratory Ruling and Order (“2015 Order”) may provide some relief.

    The TCPA restricts telemarketing and the use of SMS text messages, automatic dialing systems, artificial or prerecorded voice messages, and fax machines. Importantly, for autodialers and voice messaging systems, it requires identification and contact information of the entity using the device to be contained in the message. For SMS text messages, it requires obtaining express consent from individuals before sending them text messages, and providing information on how they can stop receiving text messages.

    In ACA International v. Federal Communications Commission, et al., the D.C. Circuit issued its long-awaited opinion on the FCC’s 2015 Order interpreting various sections of the TCPA.

    Of note, the Court specifically rejected and set aside the FCC’s

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