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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

WARNING: New Proposition 65 Warning Requirements Take Effect August 30, 2018

Retailers and manufacturers should take steps now to ensure they are compliant with the new California Proposition 65 warning regulations that take effect on August 30, 2018.

Proposition 65 prohibits retailers and manufacturers from knowingly and intentionally exposing California consumers to a chemical known to the State of California to cause cancer or developmental or reproductive harm without first providing a “clear and reasonable warning.”  (Cal. Health & Safety Code § 25249.6.) The regulations provide examples of “safe harbor” warnings that are deemed to be clear and reasonable under the new amendments. Notably, the use of the specific “safe harbor” warnings included in the regulations is not actually required. Retailers and manufacturers can use any clear and reasonable warning; however, using the examples provided ensures that the warning is sufficient.

As we previously reported, amendments to the warning regulations were issued in August 2016. The 2016 and the more

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

    Retailers Should Ensure Compliance With CAN-SPAM Act and State Laws

    Email is an important marketing tool for many retailers, who need to be aware of the legal requirements regarding sending email to customers and potential customers.

    Since its enactment in 2003, the Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act has attempted to curb the number of unwanted emails and impose some rules on a largely unregulated frontier.  In addition, at least thirty-seven states have laws regulating unsolicited electronic mail advertising. A state-by-state summary is available by clicking here.

    When followed, the CAN-SPAM Act’s restrictions give email recipients some control over their inboxes and also maintain fairness in how emails present themselves.  All businesses, retailers included, can face penalties of up to $16,000 per violation for failure to follow the CAN-SPAM Act.

    As a practical matter, many retailers use vendors for their email marketing and other email services, and those vendors often assist the retailers in complying

    Eleventh Circuit to Consider Whether Prior Settlement Moots Website Accessibility Case

    The Eleventh Circuit Court of Appeals is set to hear oral arguments on April 11 concerning whether a website accessibility plan pursuant to a prior settlement agreement moots injunctive relief claims under Title III of the Americans With Disabilities Act.

    In Haynes v. Hooters of America, LLC, the U.S. District Court for the Southern District of Florida granted Hooters’ motion to dismiss on grounds that the company has already agreed to make its website accessible pursuant to a prior settlement agreement.  Judge Robert Scola held that the prior agreement rendered moot the plaintiff’s ADA action, since the ADA does not provide for recovery of damages, only injunctive relief.  Judge Scola is the judge that previously ruled after trial that Winn Dixie’s website was not accessible in violation of the ADA.

    Other retailers, including Outback Steakhouse and Panda Express, have also been successful in using the same argument against the same plaintiff to

    Washington Bans PFAs in Food Packaging

    Washington Bans PFAs in Food Packaging

    March 27, 2018

    Authored by: Bryan Cave and Merrit Jones

    Washington has signed into law the Healthy Food Packaging Act (H.B. 2658/S.B. 6396), making the state the first in the country to ban perfluorinated chemicals (PFAs) in food packaging.

    If the Washington’s Department of Ecology identifies safer alternatives to PFAs by January 1, 2020, the law will ban PFAs in paper food packaging effective January 1, 2022. If the state is unable to find a safer alternative, the law will not go into effect and the Department of Ecology must annually review the availability of alternatives. When the department finds an acceptable alternative, the ban will go into effect two years later.

    Washington is not the only state to target chemicals in food packaging.  California is considering regulating food packaging as part of its Green Chemistry Initiative and the Safer Consumer Products (SCP) implementing regulations, based in part on use of perfluoroalkyl and polyfluoroalkyl substances that “create grease-proof and

    California Considers Regulating Food Packaging Under Green Chemistry Initiative

    As part of its Green Chemistry Initiative and the Safer Consumer Products (SCP) implementing regulations, California’s Department of Toxic Substances Control (DTSC) has released its Draft Three Year Priority Product Work Plan (2018-2020).  The Plan indicates that for the first time it will “address exposures from harmful chemicals that migrate from consumer products into food.”

    DTSC selected a total of seven product categories to include in the Plan. Five categories have been carried over from the 2015-2017 Plan:

    • Beauty, personal care, and hygiene products
    • Cleaning products
    • Household, school, and workplace furnishings and décor
    • Building products and materials used in construction and renovation
    • Consumable office, school, and business supplies

    DTSC has also added two additional categories – food packaging and lead-acid batteries. Clothing products and fishing and angling equipment, two of the product categories from the prior Plan, will not be evaluated under this Plan.

    The Plan states

    Avoiding the Blame Game: How to Avoid Liability for Other Companies’ Employees

    Retailers often hire labor hired by outside vendors, such as employees who stock shelves, take inventory, or provide cleaning, security or deliver services.  Retailers should consequently be keenly aware of various joint employment doctrines that are frequently used to hold companies liable for violations of the law alleged by individuals who companies do not consider their employees.  There are variations of the joint employment doctrine, and their application depends on the type of employment case brought by the individual.

    For wage-and-hour cases brought under the Fair Labor Standards Act (FLSA), courts will apply the “economic realities” test to determine whether an employer-employee relationship exists between a company and a plaintiff.  This test primarily assesses whether an employee’s actual working relationship with an alleged employer forms the basis for the employee’s economic livelihood.  If parties are held to be joint employers under the FLSA, then both entities are held liable for the

    Beware the Empty Space: No Slack in Slack Fill Cases, Which Continue to Flood Courts

    As we previously reported, slack fill litigation remains on the rise.  Plaintiffs continue to file consumer lawsuits – typically putative class actions – alleging food packaging is deceptive because it contains empty space, or nonfunctional slack fill, and disguises the amount of product in the package.

    This roundup of recent decisions demonstrates that more plaintiffs are getting past early pleading challenges but likely will face significant barriers to success at summary judgment and class certification.

    On February 16, 2018, a Missouri federal district court denied Nestlé’s motion to dismiss in Hawkins v. Nestlé USA, Inc., No. 4:17CV205 -HEA, 2018 WL 926130 (W.D. Mo. Feb. 16, 2018) challenging allegations that boxes of Raisinets candy contain 45 percent nonfunctional slack fill. In its motion to dismiss, Nestlé argued that a reasonable consumer would instantly realize the package was half-empty because of its “maraca-like rattle.”  The court rejected this argument because Nestlé relied on

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