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FDA’s Delay in Implementing Calorie Labeling Law Leaves Fate Uncertain

May 12, 2017


The latest delay by the Food and Drug Administration (FDA) in implementing new calorie labeling rules gives restaurants and food retailers a little breathing room. Originally set for May 5, the agency pushed back the deadline a second time, now requiring compliance by May 2018.

Seven years ago, the menu labeling law was passed as Section 4205 of the Affordable Care Act (ACA), and the FDA has been working on the details ever since.  Its final rule requiring calorie labeling requires restaurants and “similar retail food establishments” (such as convenience stores, grocery stores, concession stands, and food takeout or delivery establishments) that are part of a chain of 20 or more locations and that sell substantially the same menu items to, among other things, post the following on menus and menu boards:

  • calorie information;
  • a succinct statement on suggested daily caloric intake; and
  • a statement that written nutrition information is available upon request (and provide such information, upon request).

The FDA has also issued an industry compliance guide on what types of foods and businesses are covered, what information must be provided, and the format.

Although a bill to repeal and replace the ACA has passed the House, it does not address Section 4205. And since Section 4205 is not related to taxes or revenue, it cannot be repealed through budget reconciliation.

The FDA’s delay in implementing the rule, however, indicates that its fate may be uncertain, particularly under a new FDA commissioner. Some think the

Ninth Circuit Revives Baby Food False Advertising Class Action

May 1, 2017


The Ninth Circuit has revived a proposed class action against Gerber, saying the mother who sued it for labeling its sugar-laden baby food as “natural” only had to prove the labels were misleading, not necessarily false. “Even technically correct labels can be misleading,” the panel wrote in an unpublished order reversing the district court’s dismissal of the putative class action.

In Bruton v. Gerber Food Products Co., Case No. 5:12-cv-02412-LHK, the plaintiff alleged that labels on certain Gerber baby food products included claims about nutrient and sugar content that were impermissible under Food and Drug Administration regulations incorporated into California law. She challenged the labels that describe the food as “excellent source,” “good source,” “as healthy as fresh,” “no added sugar” and “natural.” The products include a variety of snack foods that allegedly mislead consumers about being good sources of vitamins C and E, iron and zinc, and support “healthy growth and development.”

The district court denied class certification, and granted summary judgment for the company in 2013. The plaintiff appealed, and on Wednesday a three-judge Ninth Circuit panel reversed and remanded, with one judge dissenting in part and concurring in part. The panel held the district court erred when it held the class was not “ascertainable” and that there was a triable issue of fact as to whether the claims on Gerbert’s products in violation of FDA regulations were likely to mislead the public.

“Bruton’s theory of deception does not rely on proving that any of Gerber’s labels were

Businesses Beat Lawsuits Alleging Website Terms Violate New Jersey Law

Every retailer that does business in New Jersey needs to know about New Jersey’s Truth in Consumer Contract, Warranty and Notice Act (“TCCWNA”), which was passed in 1981 to protect the rights of consumers from allegedly deceptive practices in consumer contracts, warranties, notices and signs. Recently, however, the TCCWNA has been the basis of a flurry of pre-suit demand letters to retailers and class action lawsuits filed in state and federal courts in New Jersey.

The TCCWNA’s prohibition of the use of certain terms or disclaimers in warranties, consumer contracts, and other consumer-facing  materials  has been interpreted to include language typically used by retailers in their websites’ terms and conditions, rules of use, on social media, and in contracts – such as commonly used provisions seeking to hold the retailer harmless/limit liability, requiring the customer to assume risks, provisions waiving certain fees and costs, and cost-shifting language.  A general disclaimer directed to New Jersey residents has been deemed insufficient to satisfy the requirements of the statute.

However, businesses have had some recent success in defeating TCCWNA claims.  For example, in Palomino v. Facebook, Inc., No. 16-cv-04329-HSG, (N.D. Cal. Jan. 9, 2017), Facebook was successful in dismissing a putative class action against it alleging a violation of the TCCWNA based on the choice-of-law clause in its website’s terms of service.  Read further case analysis by clicking here.  

More recently, in Norris Hite v. Lush Internet, Inc., Case No. 16-1533 (D. N.J. March 22, 2017), Lush Internet, Inc. was successful in

Think Your Market Is Global? Then Global Consumer Regulators Likely Are Watching Your Business

April 14, 2017



Advances in internet technologies, global social media platforms, and inventory order management and shipping delivery systems have revolutionized our businesses. Shopping-at-home and catalog sales, markets most retailers never would have considered as recently as 20 years ago, are now vibrant. Your business now may have customers in many different countries. You should be aware of the growing collaboration among the consumer watchdogs across the world, because those regulators may well be aware of your business through consumer complaints. is a site sponsored by the International Consumer Protection and Enforcement Network (ICPEN) and supported by the U.S. Federal Trade Commission (FTC) as well as approximately 35 other countries’ consumer regulators. The site provides consumer education and publishes trends regarding consumer fraud complaints. As the tag line of the site reveals, it also is a portal for the collection of global consumer fraud complaints: “Report international scams online.” Among the tips the site offers consumers is to use social media to publicize complaints about business practices.

ICPEN suggests that companies have personnel monitoring social media and consider taking prompt action regarding complaints. Your PR and customer experience teams should be aware of this ICPEN recommendation. You should consider training and policies to address handling both on-line and social media complaints. Doing so will help keep customers returning to your business, will protect your brand reputation, and may help lower the risk of intervention by global regulators. For more detailed information about the types of information ICPEN and

Beware of Making Unsubstantiated Anti-Aging Claims

Manufacturers, distributors, and retailers often tout the anti-aging effects of certain cosmetics and nutritional supplements. Of course, the term “anti-aging” is not intended to literally mean that a product prevents aging. To the contrary, it is understood by both the industry and consumers as describing a product that is designed to mitigate, mask, or soften certain cosmetic indicators that come with age. These typically include wrinkles, discoloration, greying of the hair, or a loss of skin firmness.

Anti-aging litigation has proven popular with the plaintiffs’ bar. In the past five years, there have been at least 31 class action complaints filed alleging deceptive advertising of anti-aging products, and at least 10 enforcement actions brought by the Federal Trade Commission (FTC).

Often such putative class actions allege that advertising which touts a product’s anti-aging properties is deceptive and misleading to consumers. Typically, complaints over anti-aging claims lack affirmative evidence that a cosmetic product fails to produce the advertised effect. Rather, plaintiffs attempt to challenge the sufficiency of the advertiser’s substantiation for an anti-aging claim or, more recently, attempt to characterize an anti-aging product as an unregistered “drug,” for which FDA approval should have been obtained.

Marketers of cosmetic products should consider the following when reviewing their anti-aging claims, and their potential exposure to litigation:

  • Structure Claims to Focus on Consumer’s Perception.  Most cosmetic products are designed to conceal, mask, or mitigate the visual effects of aging, not to reverse the aging process itself. Consider drafting advertising language to make clear

Taking the Stress Out of Distress for Retailers

March 31, 2017


Despite the downturn in many retail sectors, retailers should not automatically adopt a “glass half empty approach” but instead view the impending cycle as creating opportunities for companies in both the U.S. and globally.

In recent months, a steady stream of analyst coverage has painted a bleak outlook for the retail industry. Between February and March 2017, BCBG Max Azria, Eastern Outfitters, hhgregg, Gander Mountain, and Gordmans were among the companies added to the long list of retailers to seek bankruptcy protection. In February 2017, Moody’s Investors Service reported that the number of distressed U.S. retailers has tripled since the 2008-2009 recession. With 19 companies currently in Moody’s Caa/Ca retail portfolio, industry analysts are forecasting this current distressed cycle will surpass the conditions that existed for the industry in 2008-2009. The continued growth of online retailers is expected to hasten that result.

For companies with healthier balance sheets, the current level of distress in the industry could present prospects for strategic acquisitions, to diversify, or expand domestically or globally. Likewise, retailers feeling the financial strains of the downturn may still have viable options to outlive competitors and capture market share of those less successful. In either case, to unlock these opportunities retailers would benefit from divorcing themselves of any apprehension associated with the notion of restructurings, distressed assets, or the U.S. Chapter 11 bankruptcy process.

Buyer’s Market

Flexible retailers with an understanding of the Chapter 11 sales process can compete for the same lucrative opportunities private equity funds have historically

Court Dismisses Website Accessibility Case as Violating Due Process, Since DOJ Still Has Not Issued Regulations

March 30, 2017


Recent court decisions from California and Florida may provide ammunition to retailers battling claims that their websites and mobile applications are inaccessible in violation of Title III of the Americans With Disabilities Act (the “ADA”). As we reported in a previous blog post, retailers and other businesses have faced a wave of such demand letters and lawsuits.  Most of these claims settled quickly and confidentially.

However, a California district court recently granted Dominos Pizza’s motion to dismiss under the primary jurisdiction doctrine, which allows courts to stay or dismiss lawsuits pending the resolution of an issue by a government agency. In Robles v. Dominos Pizza LLC, U.S. Dist. Ct. North Dist. Cal. Case No. CV 16-06599 SJO, the court held it would violate Domino’s due process rights to hold that its website violates the ADA, because the Department of Justice still has not promulgated regulations defining website accessibility – despite issuing a notice of proposed rulemaking back in 2010.

The court stated that the DOJ’s application of an industry standard, the Website Content Accessibility Guidelines 2.0 (WCAG 2.0), in statements of interest and consent decrees in other cases does not impose a legally binding standard on all public accommodations. It also noted that those consent decrees indicated flexibility to choose an appropriate auxiliary aid to communicate with disabled customers, and suggested that Domino’s provision of a telephone number for disabled customers may satisfy this obligation. Retailers that do not have an accessible website should therefore provide a toll-free

Give Me … “Separability!” Supreme Court Holds Cheerleading Uniform Designs Copyrightable

In an important copyright case for retailers, the Supreme Court, in Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. (2017), resolved “widespread disagreement” among the circuits, and adopted a single test to determine the copyrightability of designs incorporated in “useful articles.” The Court held that “an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.” Applying that test to Varsity Brands’ cheerleading uniforms, the Court concluded that the “arrangement of colors, shapes, stripes, and chevrons on the surface of the cheerleading uniforms” are separable from the uniforms and eligible for copyright protection.

In Star Athletica, a producer of cheerleading uniforms sued a competitor for infringing copyrights in five cheerleading uniform designs, one example of which is shown below for reference, consisting primarily of “combinations, positionings, and arrangements of…chevrons, lines, curves, stripes,” and similar shapes, and color combinations. The U.S. District Court for the Western District of Tennessee granted summary judgment in the alleged infringer’s favor, finding that “the designs did not qualify as protectable pictorial, graphic or sculptural works” because they served the “‘utilitarian’ function of identifying the garments as ‘cheerleading uniforms’ and therefore could not be ‘physically or conceptually’ separated” from the uniform. The

“Made in USA” Claims Can Be Considered Deceptive Unless Substantiated

Although every product (unless excepted) that is imported into the United States must be marked with its country of origin pursuant to Section 304 of the Tariff Act of 1930, most products manufactured domestically are not required to list the United States as the country of origin. However, if manufacturers or retailers do choose to market their products as “Made in the USA,” these claims must be substantiated, or risk being considered deceptive under federal or state law.

On the federal level, the Federal Trade Commission has issued guidelines and considers representations that a product is “Made in the USA” to be deceptive, unless (1) “all or virtually all” of a product’s components are of U.S. origin, and (2) “all or virtually all” processing takes place in the United States.  Furthermore, the FTC considers phrases such as “Produced in the USA,” “Built in the USA,” or “Manufactured in the USA,” as conveying a near-identical meaning to “Made in the USA,” and applies the same standard.

The standards for “Made in the USA” claims may vary from state to state.  Under California law, for example, such labeling claims are allowed only “if all of the articles, units, or parts of the merchandise obtained from outside the United States constitute not more than 5 percent of the final wholesale value of the manufactured product.” Such labels are also allowed if the manufacturer makes a showing that it cannot produce or obtain a certain article, unit or part within the United States

Mitigate Consumer Litigation Risk by Watching the FTC: Five Good Reasons

March 8, 2017


2017 already has been, and surely will continue to be, a year of great change. Regulatory agencies are re-envisioning their mandates. Many have or soon will have new leadership. And advocacy groups for consumers are mobilized.

Some of the regulatory changes may favor retail businesses. But others may continue to bring increased scrutiny and require more transparency with consumers. What can retail businesses do to help mitigate their risk and understand the headwinds they may be facing?  One thing that may be helpful would be to monitor the Federal Trade Commission (FTC)’s website. Why? Five good reasons.

  • Consumers are going to the FTC website. You should know what your customers are learning.
  • The Consumer Information section of the site offers a breadth of information, including tabs for Money & Credit, Homes & Mortgages, Health & Fitness, Jobs & Making Money, and Privacy, Identity & Online Security. In addition, the website offers certain targeted at risk populations detailed information tailored to address their respective concerns. Older Adults and Military Families have their own tabs. As do advocate groups like Financial Educators, Consumer Advocates, and the NAACP.

    If the FTC is highlighting your business products, you should know. You should consider whether the FTC is indicating your products present consumers heightened risk. Even if, however, your business products are not specifically mentioned, there is benefit in seeing the consumer marketplace and your products through the regulators’ lens. Most important, by understanding that lens, you may be able to refine your

    Monitoring Employees’ Email and Internet Use Raises Legal Considerations

    March 3, 2017


    Retailers should be aware that federal laws prohibit the interception of another’s electronic communications, but these same laws have multiple exceptions that generally allow employers to monitor employees’ email and internet use on employer-owned equipment or networks.

    As a result, under federal law, when retail employees use an organization’s telephone or computer system, monitoring their communications is broadly permissible, though there may be exceptions once the personal nature of a communication is determined. For example, under the National Labor Relations Act, employers cannot electronically spy on certain types of concerted activity by employees about the terms and conditions of employment.

    Although monitoring is broadly permitted under federal law, some states, including Connecticut and Delaware, require that employers notify employees that they may be monitored. Even in states that do not require notice, employers often choose to provide notice since employees who know they are being monitored are less likely to misuse corporate systems. It is good practice for a retailer to have employees sign a consent or acknowledgment that monitoring may occur and to inform them that personal calls may not be made from particular telephones.

    Employers may also monitor what an employee posts to social media. However, under some state laws employers cannot request that an employee provide his or her username and password to a social-media account in order for the employer to see content that was not published publicly. In 2016, sixteen states introduced or passed legislation prohibiting employers from requesting such information. This would include, for

    How to Avoid ADA Claims as Service Animals Increase in Popularity

    February 24, 2017


    As retailers see an increasing number of customers seeking to bring animals into their stores, they should ensure that they have well-defined policies and train their employees concerning compliance with the ADA’s provisions regarding service animals. This is the third in a three-part series addressing ADA compliance. In earlier posts we addressed how to improve accessibility and reduce potential liability for premises barriers and website accessibility.

    Title III of the ADA prohibits discrimination against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation,” which includes retail stores.

    Under regulations issued by the Department of Justice, service animals are dogs (or miniature horses, since some people are allergic to dogs) that are individually trained to do work or perform tasks for people with disabilities. Some state laws define service animals more broadly to include other types of animals as well. Service animals are working animals – not pets. Emotional support animals, whose sole function is to provide comfort or emotional support, do not qualify as service animals under the ADA.

    Retailers may ask customers two questions to determine if an animal qualifies as a service animal:

    (1) Is the animal required because of a disability?

    (2) What work or task has the animal been trained to perform?

    A retailer may not ask these questions, however, when it is readily apparent that the service animal is performing a task for a customer with

    Woman Claims Her Picture is Worth $2 Billion in Right of Publicity Suit

    Could a promotional photograph of a restaurant scene that includes a customer with her hand partially obscuring her face be worth more than $2 billion?  That’s what a lawsuit brought by the customer claims.

    In an action pending in the U.S. District Court for the District of Colorado, plaintiff Leah Caldwell of Sacramento, California, who is representing herself, claims the restaurant chain Chipotle used the “iconic” image of her for advertising between 2006 and 2015.  The lawsuit includes a claim for right of publicity under California’s misappropriation statute, stemming from Ms. Caldwell’s allegation that she is “readily identifiable and depicted in the photograph as a woman of color wearing a white, long-sleeved shirt, hair up, and large eyes looking directly at the camera.”  Ms. Caldwell says that she was approached by the photographer on the day of the photo shoot, which took place at a Chipotle restaurant in Denver, Colorado, in 2006, and was asked to sign a release, which she refused.  According to the lawsuit, she subsequently saw the photograph displayed at various Chipotle restaurants in both California and Florida.

    It used to be that right of publicity claims were the province of famous people, who would bring lawsuits when their image or likeness was used for commercial gain (i.e., for advertising or marketing purposes) without their consent.  With the growth of the Internet and social media, ordinary folks have entered the right of publicity arena, using such claims when they feel their image was used commercially and without

    Disclose and Follow Standards for Collection and Sharing of Customers’ Online Behavioral Data

    January 31, 2017


    Many retailers engage in behavioral advertising, which refers to the use of information to predict the types of products or services of greatest interest to a particular consumer. Online behavioral advertising takes two forms. “First party” behavioral advertising refers to situations in which a website uses information that it obtains when interacting with a visitor. “Third party” behavioral advertising refers to situations in which a company permits others to place tracking cookies on the computers of people who visit the site, so that those individuals can be monitored across a behavioral advertising network.

    Two self-regulatory associations – the Network Advertising Initiative (“NAI”) and the Digital Advertising Alliance (“DAA”) – have created standards for companies engaged in third-party online behavioral advertising.  They recommend clear, meaningful and prominent disclosure on a retailer’s website that describes its data collection, transfer and use practices.  With respect to third-party behavioral advertising, they recommend describing the types of data that are collected, explaining the purpose for which it is collected or will be transferred to third parties, and providing a prominent opt-out mechanism by which customers can opt out from being tracked.

    In addition to the self-regulatory effort, California’s Online Privacy Protection Act went into effect on January 1, 2014, and could be interpreted as requiring retailers and other businesses to notify consumers in their website privacy policies if they permit third party behavioral advertising. The following provides a snapshot of information concerning behavioral advertising.

    What to think about when evaluating your organization’s online behavioral advertising

    Retailers Seek to Improve Website Accessibility Following Surge of ADA Claims

    January 19, 2017


    Retailers have faced a wave of demand letters and lawsuits recently alleging that their websites are inaccessible in violation of the Americans With Disabilities Act of 1990 (the “ADA”), despite the fact that the ADA and its implementing regulations do not expressly address websites. This is the second in a three-part series addressing ADA access claims.  In a December 1st post we addressed how to reduce potential liability for premises issues, and this post focuses on website accessibility.

    Title III of the ADA prohibits discrimination against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation,” 42 U.S.C. § 12182(a), which includes brick and mortar retail stores.

    The Department of Justice (“DOJ”) is the government agency that enforces the ADA and issues regulations concerning its implementation. The DOJ is in the process of developing regulations for website accessibility, but is not expected to finalize these regulations until 2018 at the earliest.

    While government regulations are being developed, the demand letters and lawsuits typically demand compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 level AA guidelines created by an industry group, the World Wide Web Consortium (W3C). Despite its stalled regulations, the DOJ has made clear its position that the ADA applies to websites, and that WCAG 2.0 level AA provides an appropriate standard for website accessibility.

    A final rule was announced recently under Section 508 of the

    Reduce Potential Liability for Data Security Breaches by Negotiating Coverage in Payment Processing Agreements

    January 13, 2017


    Credit cards are the primary form of payment received by most retailers. In order to process a credit card, a retailer must enter into an agreement with a bank and a payment processor. Payment processing agreements often have significant impacts on a retailer’s financial liability in the event of a data breach. In many cases, the contractual liabilities that flow from a payment processing agreement surpass all other financial liabilities that arise from a data breach, including the cost to investigate an incident, defend litigation, and defend a regulatory investigation.

    The following checklist describes common data security related provisions to look for within most payment processing agreements:

  • Incorporation of Payment Brand Rules. Most payment processing agreements incorporate by reference the rules, regulations, and guidelines of the payment brands (American Express, Discovery, MasterCard, and/or Visa). When negotiating a payment processing agreement, it is important to determine whether the obligation to abide by the payment brand rules is unilateral (i.e., is imposed only upon the merchant) or reciprocal (i.e., is imposed upon the merchant, the acquiring bank, and the payment processor).
  • Incorporation of the Payment Card Industry Data Security Standard. Many payment processing agreements reference the PCI DSS and require that a merchant be, and remain, in full compliance with the requirements of the PCI DSS. When negotiating a payment processing agreement it is important to determine whether you are, or are not, currently in compliance with the PCI DSS, and whether the obligation to comply with the PCI DSS is unilateral
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