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Does Your Organization Collect Geo-Location Information?

July 14, 2016

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Smartphones, smartphone apps, websites, and other connected devices (e.g.,“wearables”) increasingly request that consumers provide their geo-location information.  Geo-location information can refer to general information about a consumer’s location, such as his or her city, state, zip code, or precise information that pinpoints the consumer’s location to within a few feet, such as his or her GPS coordinates.

Organizations request geo-location information for a variety of reasons.  For example, many apps – such as transportation or delivery services – require geo-location in order to provide services that are requested by the consumer.  Other apps – such as mapping programs, coupon programs, or weather programs – require geo-location information in order to provide consumers with useful information.  Because such information has become intertwined, in many cases, with products and services, some organizations require the user to “Accept” or ‘“Agree”’ to the collection of geo-location information as a condition to using a device,

California Proposition 65 Notices Allege BPA in Receipts, Water Cooler Jugs

July 11, 2016

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Since the Prop. 65 warning requirement for bisphenol-A (BPA) took effect on May 11, 2016, two 60-day notices have been served alleging harmful exposure to the chemical without providing a warning. Those notices, both served by the Center for Environmental Health (CEH) on June 27, 2016, allege the presence of BPA in receipt paper and polycarbonate plastic water containers used for water coolers.

The receipt paper notices were served against Del Taco and Grewal Superfoods Inc., and the water jug notice was served against Home Depot and DS Services of America, Inc.

BPA is listed under Prop. 65 as a chemical known to cause harm to the female reproductive system. OEHHA recently adopted a safe harbor exposure level for BPA, for dermal exposure from solid materials, of 3 micrograms per day. Exposure below this level does not require a warning. The safe harbor level would apply to BPA in receipt paper.  

The FDA Dishes Out Food Label Changes

The current food label will soon be no more. After two decades, the Food and Drug Administration (FDA) just finalized the new Nutrition Facts label for packaged foods. Making it easier for consumers to make better informed food choices, the FDA announced that the changes are based a combination of public input, updated scientific information, new nutrition and public health research, and more recent dietary recommendations from expert groups.

Highlights of the changes include:

The Refreshed Label 

  • While the label’s appearance will generally remain the same, to highlight certain information the new label includes changes such as increasing the type size for “Calories,” “Servings per Container,” and the “Serving Size” declaration, and bolding the number of calories and the “Serving Size” declaration to highlight this information.
  • In addition to percent Daily Value of vitamin D, calcium, iron and potassium, manufacturers must declare the actual amount. For other vitamins and

The Top Three Privacy Takeaways of the New Delaware Online Privacy and Protection Act

June 27, 2016

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Delaware’s New Privacy Policy Requirements

Effective January 1, 2016, Delaware became the second state in the U.S., joining California, to require operators of commercial websites that collect personally identifiable information to post online privacy policies. The Delaware Online Privacy and Protection Act (DOPPA) applies to anyone who operates a “commercial internet website, online or cloud computing service, online application, or mobile application.”

Before this Delaware law was passed, California was the only state to have enacted a law requiring operators to post a privacy policy.  See Cal. Bus. & Prof. Code §§ 22575-11579. As a result, most privacy policies were developed according to the California requirements. California’s law applies to an operator of a commercial website or online service. On October 30, 2012, the California Attorney General announced in a press release that it considers mobile apps to be a form of “online service,” thus making California’s privacy

California May Collect Certain Information from Businesses to Support Its New Proposition 65 Website

June 23, 2016

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California’s Office of Environmental Health Hazard Assessment (OEHHA) has launched a website, www.P65Warnings.ca.gov, intended to provide both businesses and consumers with information regarding the requirements for Proposition 65 warnings.

The website provides information regarding listed chemicals, including when they were listed, the basis for listing, and whether they are listed as a carcinogen or as causing reproductive harm.  The website also identifies products and places that require a specific Prop. 65 warning under the new regulations being considered by OEHHA, such as alcoholic beverages, furniture products, amusement parks, and dental offices.  It provides the current language for the current Prop. 65 warning for those products as well as the newly proposed language.  It also provides information about the types of listed chemicals likely to be found in those products, the likely routes and levels of exposure, and ways to reduce that exposure.

In order to develop information

What to Consider When Drafting or Reviewing a Privacy Policy

June 20, 2016

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Although financial institutions, health care providers, and websites directed to children are required to create consumer privacy policies under federal law, other types of websites are not.  In 2003, California became the first state to impose a general requirement that most websites post a privacy policy.  Under the California Online Privacy Protection Act (“CalOPPA”), all websites that collect personal information about state residents must post an online privacy policy if the information is collected for the purpose of providing goods or services for personal, family, or household purposes.  Since the passage of the CalOPPA, most websites that collect information – whether or not they are directed at California residents or are otherwise subject to the CalOPPA – have chosen to post an online privacy policy.

What to think about when drafting or reviewing a privacy policy:

  • Is your organization subject to a federal law that requires that
  • The DOL’s New FMLA Poster – Does It Impact Your FMLA Policy?

    By now, you’re likely aware (and if you’re not, you should be) that, in April, the U.S. Department of Labor (“DOL”) issued a new “Employee Rights Under The Family And Medical Leave Act” poster, to replace the prior poster on this subject.

    The DOL has made clear that the old poster (revised Feb. 2013) is still sufficient – until further notice – to meet the posting requirement under the FMLA regulations. Thus, you’ve probably already given some thought as to whether and when to proceed with updating your posters.

    As you consider this step, however, have you also considered whether the new poster impacts your policy?

    The FMLA regulations provide that, if an FMLA-covered employer has any FMLA-eligible employees, and if the employer has a written policy on the subject of leave/benefits, then the employer must ensure that its policy contains the same information that is in the FMLA poster. (The notice

    How to Pass Data Between Retailers to Facilitate Transactions

    June 9, 2016

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    Online retailers often learn information about a consumer that may be used to help identify other products, services, or companies that may be of interest to the consumer.  For example, if a consumer purchases an airplane ticket to Washington, D.C., the consumer may want information about hotels, popular restaurants, or amenities at the airport.

    Although online retailers often strive to provide recommendations quickly, and to make a consumer’s transition to a third party retailer seamless, the Restore Online Shoppers’ Confidence Act (“ROSCA”) generally prohibits one online merchant from transferring payment information (e.g., a credit card number) to a second online merchant.

    Below are some questions to consider when evaluating the data privacy issues involved in passing information between online retailers:

  • Are consumers being presented with third party products or services when they visit a retailer’s website?
  • Are consumers being presented with third party products or services immediately after they visit
  • Subscription-Based Business Models: An Overview of Auto-Renewal Regulations

    The demand for subscription-based and recurring revenue business models is growing faster than ever.  According to a 2014 report by The Economist Intelligence Unit, 80 percent of customers are demanding new consumption models including subscribing, sharing, and leasing.  As a result, most companies are changing, or are in the process of changing, how they price and deliver their goods and services.  With 6.8 billion potential subscribers on mobile, social and web, the market is ripe for the business models first made popular by companies such as BirchBox and Dollar Shave Club.

    A natural corollary to the recurring revenue streams driven by subscriptions is the need to comply with laws regulating purchases that automatically renew.  While subscription services (sometimes referred to as auto-renewal programs) can be lucrative, companies should be mindful of the applicable laws to avoid the costs of fighting off the type of lawsuits that led to Sirius

    The New FLSA Regulations: Impact Will Be More Than Just Higher Salaries for Exempt Employees

    As has been widely publicized in the press, on May 18, 2016, the U.S. Department of Labor (“DOL”) released the final rule updating the regulations regarding the white collar exemptions from overtime compensation under the Fair Labor Standards Act (“FLSA”). These regulations apply to workers who fall under the executive, administrative, or professional exemptions from the FLSA’s minimum wage and overtime protections as well as to the highly compensated employee.  The new regulations will likely be challenged, but, barring a court injunction or other action, they will go into effect on December 1, 2016. While the DOL did not alter the duties test for the overtime exemptions, the impact on employers will be much more profound than just higher salary levels.

    THE NEW REGULATIONS

    Under the new regulations:

    • The salary threshold increases from $455 per week (i.e., $23,660 per year) to $913 per week (i.e., $47,476 per year).
    • The total

    Recommendations for Evaluating Your Company’s Use of Social Media

    The majority of retailers utilize social media to market their products and services, interact with consumers, and manage their brand identity. Many mobile applications and websites even permit users to sign-in with their social media accounts to purchase items or use the applications’ services.

    While using third party social media websites has significant advantages for businesses, it also raises distinct privacy concerns. Specifically, the terms of use that apply to social media platforms may give the platform the right to share, use, or collect information concerning your business or your customers. To the extent that the social media platform’s privacy practices are not consistent with the practices of your own company, they may contradict or violate the privacy notice that you provide to the public.

    Here is a list of issues to consider when evaluating your company’s use of social media:

  • How would a data breach of social media platforms
  • No Common Sense – Today’s Cost of Doing Business

    May 23, 2016

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    What is a retailer to do? The world today is filled with people assuming they are being disrespected and believing they are being defrauded. It’s not just that some customers can be surly and demanding when they are in your store, they often seek to sue you on behalf of all your customers, wreaking havoc on your business operations and driving up your legal expenses. Common sense, courtesy, and consideration may be the retailers’ best tools both at the point of sales and in court.  Remember even when they sue, people are your customers.

    Over the past several years, there has been a rash across the country in “consumer protection” class actions. Not health and safety challenges; those obviously should be first order of priority both from the standpoint of risk to the company and from the standpoint of reputation and “doing the right thing.” For example, labeling class action

    Gender-Based Price Discrimination: California Seeks to Extend Law to Prohibit Discrimination in Pricing of Gender-Specific Goods

    California is taking on gender price discrimination. California law already prevents businesses from gender-based price discrimination for services such as haircuts, alterations, and dry cleaning.   A recently proposed bill (Senate Bill 899, Hueso) would extend that law to “retailers” and prohibit price discrimination in the sale of “goods.”

    SB 899 recently passed out of the Senate Judiciary Committee, where several positive amendments were made after comments from the California Retailers Association and others.  One significant change from the original proposed legislation is elimination of a requirement that retailers post the prices of all goods so that consumers could determine if “men’s” and “women’s” products were priced the same.  The bill also removed food products from its broad scope.

    The bill as amended states: “No business establishment . . . may discriminate, with respect to the price charged for goods of a substantially similar or like kind, against a person

    Data Breach Litigation Report: An Analysis of Federal Class Action Lawsuits Involving Data Security Breaches

    Data security breaches – and data security breach litigation – dominated the headlines in 2015 and continue to do so in 2016.  While data breach litigation is an important topic for the general public, and remains one of the top concerns of general counsel, CEOs, and boards alike, there remains a great deal of misinformation reported by the media, the legal press, and law firms. At best this is due to a lack of knowledge and understanding concerning data breach litigation; at worst some reports border on sensationalism or fearmongering.

    Bryan Cave LLP began its survey of data breach class action litigation four years ago to rectify the information gap and to provide clients, as well as the broader legal, forensic, insurance, and security communities, with reliable and accurate information concerning data breach litigation risk.  The 2016 report covers litigation initiated over a 15 month period from the fourth quarter

    Native Advertising: Recent FTC Cases Require Disclosure of Paid Endorsements on Social Media

    May 12, 2016

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    Two recent cases by the Federal Trade Commission (“FTC”) demonstrate its position that paid endorsements in social media must be disclosed. These cases reinforce the FTC’s stance on transparency in native advertising, which is paid advertising made to look like the media content around it.

    The FTC has approved a final consent order with Machinima, Inc. requiring the company to disclose when it has compensated “influencers” to post online videos or product endorsements. According to the FTC’s complaint, the California-based online entertainment network engaged in deceptive advertising by paying influencers to post online videos endorsing a home video game system and several games, without disclosing that they were being paid for their opinions.

    Although not yet final, the FTC has also proposed a consent order with department store chain Lord & Taylor, based on that company’s advertising campaign for a new apparel line using a paid article in online fashion

    The Hidden Danger for Retailers Doing Business in New Jersey: Alert Regarding the Truth-in-Consumer Contract, Warranty and Notice Act

    A New Jersey statute intended to prevent deceptive practices in consumer contracts recently has become a focus for litigation in the state.

    The Truth-in-Consumer Contract, Warranty and Notice Act, N.J.S.A. §56:12-14 et seq., (“TCCWNA”) prohibits the use of illegal terms in consumer contracts and also provides that consumer contracts may not state that any of its provisions are void, unenforceable or inapplicable in some jurisdictions “without specifying which provisions are or are not void, unenforceable or inapplicable within the State of New Jersey.” See TCCWNA at §56:12-16. In other words, a general disclaimer regarding a consumer contract that is directed to New Jersey residents is not sufficient. Instead, it appears the customer-facing language used by a retailer should identify the specific provisions of its contracts, warranties, notices, loyalty programs, signs, etc. that are void, unenforceable or inapplicable in New Jersey.

    Courts have interpreted the statute to apply to language

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