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California Adopts New Prop. 65 Warning Regulations

California Adopts New Prop. 65 Warning Regulations

September 7, 2016

Authored by: Bryan Cave, Merrit Jones and Marcy Bergman

California’s Office of Environmental Health Hazard Assessment (OEHHA) has adopted new Proposition 65 warning regulations.  The new regulations will take effect in two years, on August 30, 2018.  In the interim, businesses may choose to comply with either the current or new regulations.

Prop. 65 prohibits businesses from knowingly and intentionally exposing California consumers to a chemical known to the state of California to cause cancer or reproductive harm without first providing a “clear and reasonable warning.”  As we reported on a draft of the regulations in April 2016, the new regulations substantially change what constitutes a clear and reasonable warning.

Products with label warnings manufactured prior to the effective date of the new regulations would continue to receive protection from liability. Parties to existing settlement agreements or court-approved consent judgments also can continue to provide warnings that comply with those agreements or orders.

Regulations Seek to

Online Seller Wins Dismissal of RICO Claims in Counterfeiting Action by Fashion Retailers

A New York federal court recently held that defendant Alibaba Group Holding Ltd. (“Alibaba”), which is notorious for allegedly enabling the sale of counterfeit products, did not violate federal racketeering law by selling allegedly counterfeit products on its e-commerce venues.

Alibaba owns and operates the popular shopping sites Alibaba.com, Taobao.com, and AliExpress.com, and generated $248 billion in gross merchandise volume in 2014 – more than Amazon and eBay combined. Luxury fashion retailers, including Gucci and Yves Saint Laurent, filed suit against Alibabi and seven other corporate entities that had roles in online platforms through which Chinese merchants could connect with consumers worldwide.

The lawsuit alleges that fourteen Chinese merchants, also named as defendants, sold counterfeit products bearing plaintiffs’ marks in the Alibaba marketplaces. It further alleges that the Alibaba defendants provided the online marketing, data collection, payment processing, financing, and shipping services necessary to sell the products, even though they

Receipt With Credit Card Data Constitutes Sufficient Injury for Class Action to Proceed

A recent federal court ruling allows a class action lawsuit to proceed against luxury fashion retailer Jimmy Choo for violating the Fair and Accurate Credit Transactions Act of 2003 (FACTA).  This ruling, which will likely be appealed, has important implications for other consumer class action lawsuits against retailers.

Jimmy Choo was accused of violating FACTA by printing credit card expiration dates on customer receipts in Wood v. J Choo USA, Inc., S.D. Fla. Case No. 15-cv-81487.  Jimmy Choo argued that the plaintiff had no standing to sue because she was not damaged when the retailer printed her credit card expiration date on her receipt. The court disagreed, holding that the consumer was sufficiently damaged to maintain the action as soon as soon as the receipt was printed.

Companies facing lawsuits alleging FACTA violations should be aware that although the U.S. Supreme Court held in Spokeo Inc. v. Robins,

FDA Releases Final Rule Allowing Voluntary Risk Reviews of Food Additives to Continue

The Food and Drug Administration (FDA) says its final rule allowing outside groups to evaluate food additive risks will streamline its “Generally Recognized as Safe” (GRAS) reviews.

The agency recently released its GRAS final rule for its food additive program, switching reviews from a more formal but slower “petition-based” process to a voluntary “notification” process.  For retailers with private label food products, that means that they or their vendors can continue to convene their own expert panels to review the safety of many food additives, and provide notice of their findings to the FDA.

Under the federal Food, Drug and Cosmetic Act (FD&C Act), any substance that is intentionally added to food is a food additive that is subject to premarket review and approval by FDA, unless the substance is generally recognized, among qualified experts, as having been adequately shown to be safe under the conditions of its

New Federal Law Will Require Disclosure of GMO Content in Food

A new federal law will require food makers to disclose when foods contain genetically modified ingredients.

The law, which was recently signed by President Obama, will require such food products to be labeled with text, a symbol, or an electronic code readable by smartphone indicating the presence of GMOs. Small businesses will also have the option to label food products with a telephone number or Internet website directing customers to additional information.

The U.S. Department of Agriculture (USDA) has two years to draft regulations concerning which products require such disclosure, and additional details concerning what food makers must do to comply. After the regulations are finalized, food makers will have at least another year before the law takes effect.

Law preempts state and local GMO labeling laws.

The federal law preempts a similar Vermont law, Act 120, that took effect in July, as well as any other state or local

FAA Regulations Clear Way for Delivery Drones

FAA Regulations Clear Way for Delivery Drones

August 9, 2016

Authored by: Bryan Cave and Flora Sarder

The Federal Aviation Administration (FAA) has finalized its regulations concerning operational drones, allowing retailers to start using drone delivery systems.

In making drones available for retail delivery use, the FAA has carved out a space for drones to operate without becoming an “air carrier” under federal law regulating air transportation.

As a result, drones can now be used to deliver cargo in the mainland United States, except in Washington D.C., or any U.S. territory if the cargo weighs less than a total of 55 pounds, the flight is conducted from the remote pilot’s visual line of sight, the drones fly a maximum speed of 100 mph, and gain a maximum of 400 feet.

The much anticipated drone regulations bode well for retailers and manufacturers making their way into the drone delivery space.  Just a couple of months ago, Switzerland’s postal service began testing out drone deliveries with Matternet, a company

New Colorado Laws Grant Employees Access to Personnel Files, Right to Pregnancy Accommodations

The Colorado General Assembly ended the 2016 session by passing significant employment legislation. In June 2016, Colorado Governor John Hickenlooper signed into law House Bill 16-1432, granting employees access to personnel files upon request, and House Bill 16-1438 expanding protections for pregnant employees. All Colorado employers should familiarize themselves with these new laws and update related policies before they take effect.

PERSONNEL FILES

House Bill 16-1432 grants current and former employees the right to access their personnel files upon request. When the Act takes effect, likely on January 1, 2017, the provisions will be found at C.R.S. § 8-2-129.

Summary

This new law provides current and former employees access to their personnel files and allows current employees to obtain a copy of their personnel files.

Defining “Personnel Files”

The Act defines personnel files as “the personnel records of an employee, in the manner maintained by the employer and using reasonable efforts by the

Personal Care Product Companies Targeted for “All-Natural” Claims

July 18, 2016

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The Federal Trade Commission (“FTC”) has approved four final consent orders against companies that allegedly misrepresented their personal care products as “All-Natural” or “100% Natural.”

In the past several years, numerous private lawsuits have been filed by consumers, particularly in California, alleging that food products labeled and advertised as “natural” violate false advertising laws. The FTC orders demonstrate that other products may be at risk for such claims as well.

The FTC has authority for enforcing the Federal Trade Commission Act, which broadly prohibits “unfair or deceptive acts or practices.” The FTC views labels and ads as deceptive if there is a material misrepresentation or omission that is likely to mislead consumers and affect their choices regarding a product.

The FTC complaints allege the following companies made deceptive all-natural claims in labeling and advertising a variety of personal care products, ranging from sunscreen to shampoo: Trans-India Products, Inc., doing business

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

    Categories

    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
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