Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Partner

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

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Associate

Zak Newman

Mitchell A. Hokanson is an associate in the Litigation Department of Morrison Foerster’s San Diego office.Mitchell’s practice focuses on commercial litigation and consumer class actions. He has extensive experience with civil litigation, including managing day-to-day strategy, propounding and responding to discovery, taking and defending depositions, and engaging in motion practice. He also has experience providing regulatory advice to clients, including pro bono partners and multinational corporations. Mitchell maintains an active pro bono practice.After law school, Mitchell worked as a judicial clerk for Justice Susan M. Carney of the Alaska Supreme Court, where he drafted bench memoranda and opinions on a wide range of state and federal law topics. Prior to joining MoFo, Mitchell worked for another international law firm, where he was a member of the Complex Civil Litigation practice group, in Los Angeles, California.Mitchell received his J.D. from Columbia Law School, where he was honored as a James Kent Scholar and Harlan Fiske Stone Scholar. While in law school he was the senior executive editor of the Columbia Journal of Environmental Law and worked as a judicial intern for Judge Sandra S. Ikuta of the United States Court of Appeals for the Ninth Circuit and Judge George B. Daniels of the United States District Court, Southern District of New York. Prior to that, Mitchell earned his B.A. from Stanford University.

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Mitchell Hokanson

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FDA Seeks to Phase Out Synthetic Color Additives

Client Alert: Jury Returns Verdict in “Manufactured in the USA” False Advertising Case

ICPHSO 2025: CPSC at ICPHSO

ICPHSO 2025: State Regulation in Response to Trump’s Push for Federal Deregulation

Everyone Please Stand: Supreme Court to Consider Standing Requirements for Class Actions, With the Potential to Resolve Long-standing Multi-circuit Split.

On February 8, 2018, the California Department of Toxic Substances Control (DTSC) released a <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt14a86328dcb93273/62730e0a0d4d8e1d7f10f012/180213-dtsc-draft-priority-product-work.pdf">Draft Three-Year Priority Product Work Plan (2018-2020)</a> (new Work Plan) under its Safer Consumer Products (SCP) Program. The SCP Program is an innovative regulatory scheme to evaluate and require safer substitutes for hazardous chemicals in consumer products. The new Work Plan identifies the product categories that DTSC will evaluate during the next three years in order to identify the next set of Priority Products it will regulate under the SCP regulations.Following on the heels of the prior 2015-2017 Priority Product Work Plan (Prior Work Plan), the new Work Plan identifies seven product categories from which DTSC will propose future Priority Products for regulation. The new Work Plan also describes DTSC’s considerations in selecting the product categories and provides selected examples of Candidate Chemicals found in products within these categories.

In re Lumber Liquidators Chinese Laminate Litigation

Maxus Energy Corporation

In re Hydroxycut Personal Injury and Class Action Litigation

Los Angeles World Airport (LAWA)

Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al

Fitbit Force Recall 

People of the State of California v. The Coca-Cola Company

Seagate Technology LLC

Clif Bar, Inc.

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Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on climate-related goals and claims, hazardous substances, mass torts, and consumer product safety.

William Tarantino

Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on hazardous substances, mass torts, and consumer product safety.

William F. Tarantino

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California’s Green Chemistry Agency Issues Its Draft 2018-2020 Three-Year Priority Product Work Plan

California Proposes Next Group of Priority Products Under Its Green Chemistry Initiative

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On February 8, 2018, the California Department of Toxic Substances Control (DTSC) released a Draft Three-Year Priority Product Work Plan (2018-2020) (new Work P

California’s Green Chemistry Agency Issues Its Draft 2018-2020 Three-Year Priority Product Work Plan

Subscription and other automatic renewal offers are heavily regulated at both the federal and state levels. A recent amendment to California’s law provides a good opportunity for businesses to review their practices.[1] As of July 1, 2018, the obligations under California law will expand in two ways that may require businesses to update those practices.The first change relates to the information that businesses must provide to consumers regarding the terms of a subscription offer. The current law already requires a business to provide certain information about the renewal process — such as the amount of the recurring charges, the length of the renewal period, and the cancellation policy — both before the consumer accepts the agreement, and afterwards in an acknowledgement. As of July 1, 2018, if the offer includes any free trial or gift component, the information provided to consumers must also include a “clear and conspicuous explanation of the price that will be charged after the trial ends or the manner in which the subscription or purchasing agreement pricing will change upon conclusion of the trial.”[2]The second change relates to the types of cancelation mechanisms that a business must make available. Under the current law, businesses must provide a cancelation mechanism that may include a toll-free phone number, email address, postal address, or another “cost-effective, timely, and easy-to-use” mechanism. As of July 1, 2018, consumers who accept a subscription offer online must be allowed to terminate it exclusively online (instead of, for example, being required to call a toll-free number or send a written notice by postal mail).[3]Accordingly, businesses that offer consumer subscriptions should take steps before July to ensure that:<ul><li>if the consumer receives a free or discounted trial, the consumer also receives clear and conspicuous notice of the price to be charged, or any changes to the price being charged, after the trial ends; and</li><li>if the consumer originally entered into a subscription online, the consumer also receives an entirely online mechanism for canceling the automatic renewal.</li></ul>Local district attorneys in California have recently sought to enforce California’s automatic renewal law, and plaintiffs’ attorneys have also attempted to bring class actions against companies related to alleged violations of the law, in some cases framed as a violation of California’s unfair competition law.In addition to the obligations under the California law, businesses should also be aware of other legal considerations affecting subscription programs and free-trial offers. For example, certain states require that a business provide a reminder notice to a subscription customer before charging him or her, if the renewal period exceeds a certain length of time — typically six months. The federal Restore Online Shopper’s Confidence Act (ROSCA), which is enforced by the Federal Trade Commission (FTC), also imposes certain obligations. The FTC recently obtained a $1.3 million judgment against an online marketer, AdoreMe Inc., that allegedly failed to provide a simple mechanism to stop recurring charges.[4] The defendant had allegedly made it hard for consumers to cancel memberships, including by limiting the mechanisms for cancelation requests, and inadequately staffing its customer service department.The revisions to the California law, along with the patchwork of other applicable federal and state laws — and the attention from regulators, state attorneys and plaintiffs’ counsel — make it crucial for any business offering consumers a subscription or similar auto-renewal product or service to review its practices to ensure compliance.[1] Calif. Bus. & Prof. Code § 17602 (available at: <a href="https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201720180SB313" target="_blank" rel="noopener">https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml-?bill_id=201720180SB313</a>).[2] Id. at 17602(a)(1).[3] Id. at 17602(c).[4] Federal Trade Commission v. AdoreMe, Inc., 1:17-cv-09083 (S.D.N.Y.). The FTC’s press release is available at: <a href="https://www.ftc.gov/news-events/press-releases/2017/11/online-lingerie-marketer-prohibited-deceiving-shoppers-about" target="_blank" rel="noopener">https://www.ftc.gov/news-events/press-releases/2017/11/online-lingerie-marketer-prohibited-deceiving-shoppers-about</a>.

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

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Amended California Law Expands Requirements for Consumer Subscriptions

Amended California Law Expands Requirements for Consumer Subscriptions

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Subscription and other automatic renewal offers are heavily regulated at both the federal and state levels. A recent amendment to California’s law provides a go

On December 20, 2017, the Ninth Circuit refined the injunctive standing requirements in the misbranding context in Victor v. Bigelow and Khasin v. Bigelow (collectively, “Bigelow”), finding that injunctive standing is limited and requires a current intent to purchase challenged products in the future. See Victor v. Bigelow, No. 16-16639 (9th Cir. argued Nov. 15, 2017); Khasin v. Bigelow, No. 16-16641 (9th Cir. Argued Nov. 15, 2017).These decisions demonstrate the Ninth Circuit’s evolving standards on injunctive relief since its last decision on the issue in Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017).  (See <a href="https://classdismissed.mofo.com/consumer-products/ninth-circuit-finds-lower-court-erred-in-flushing-flushable-wipes-false-advertising-claims/">https://classdismissed.mofo.com/consumer-products/ninth-circuit-finds-lower-court-erred-in-flushing-flushable-wipes-false-advertising-claims/</a>.)  As we noted in our December 4, 2017 post on the case, the Ninth Circuit in Davidson found that the fact that a plaintiff now knows the “truth” of an allegedly false advertisement does not foreclose injunctive standing.  In Bigelow, the Ninth Circuit threads the needle to carefully avoid conflict with this decision, thereby further defining the scope of injunctive standing.We discuss the panel’s holding in Bigelow, as well as key takeaways, below.Case Background. Plaintiffs Victor and Khasin both alleged that defendant R.C. Bigelow (“Bigelow”) mislabeled its black tea by including the phrase “healthful antioxidants” on its products’ labels. See Khasin v. R.C. Bigelow, Case No. 12-cv-02204-WHO, 2016 WL 4502500 (N.D. Cal. Aug. 29, 2016); Victor v. R.C. Bigelow, Case No. 13-cv-02976-WHO, 2016 WL 4502528 (N.D. Cal. Aug. 29, 2016).  The district court granted summary judgment to Bigelow on plaintiffs’ injunctive relief claims, concluding that plaintiffs lacked Article III standing to seek an injunction preventing Bigelow from selling “mislabeled” tea.Injunctive Relief Unavailable If No Intent to Purchase. In appealing the district courts’ orders, the plaintiffs relied heavily on Davidson, arguing that the decision means plaintiffs have injunctive standing the moment they allege a labeling is misleading, regardless of whether they intend to purchase products again in the future or if the company changes its labels. See <a href="https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000012555">https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000012555</a> (Bigelow oral argument).In an unpublished opinion, the three-judge panel — which included Judge Berzon, who had sat on the Davidson panel — disagreed with plaintiffs’ argument, holding that plaintiffs were not entitled to injunctive relief because they did not face a threat of future harm.  While plaintiffs both stated that they would consider buying Bigelow tea again, they testified that they would only do so if they received an injunction first.  Both also stated that they would not consider purchasing the tea with updated and accurate packaging.  “Because they will not consider buying even properly labeled tea until they receive an injunction,” the panel reasoned, “[the plaintiffs] will not be harmed by wondering if the tea is still mislabeled or by buying the tea without knowing if it is still mislabeled.”  The panel accordingly held that the plaintiffs “did not face a real or immediate risk of being harmed again in the same manner and so lack Article III standing to seek injunctive relief.”Takeaway. Davidson and Bigelow demonstrate that injunctive standing is not an “all or nothing” standard.  Instead, whether a plaintiff has standing to pursue an injunction will depend largely on the facts, and particularly on a plaintiff’s deposition testimony.  As the panel noted in Bigelow, this raises concerns that plaintiffs’ attorneys may attempt to influence deposition testimony to ensure their clients testify in accordance with the requirements for injunctive standing.By highlighting testimony that does and does not satisfy these requirements — i.e., the “future intent to purchase and fear of mislabeling” that sufficed in Davidson versus the “intent to purchase only if an injunction is granted” that failed in Bigelow — the decisions also help define the contours of injunctive standing in the misbranding context, and put to rest disagreement in the Ninth Circuit as to the fundamentals of these standing requirements: knowledge that an advertisement is false does not foreclose standing, but a present intent to purchase — coupled with fear that the product will continue to be mislabeled — is required.

Reading the Tea Leaves: Ninth Circuit Further Clarifies Injunctive Standing Issues in Bigelow Tea Cases

On December 20, 2017, the Ninth Circuit refined the injunctive standing requirements in the misbranding context in Victor v. Bigelow and Khasin v. Bigelow (coll

Reading the Tea Leaves: Ninth Circuit Further Clarifies Injunctive Standing Issues in Bigelow Tea Cases

With the start of the new year, President Trump again nominated Republican Ann Marie Buerkle to chair the U.S. Consumer Product Safety Commission (CPSC). Her expected confirmation will continue to push the CPSC in a more corporate-friendly direction that focuses on consensus building rather than additional regulation.At the same time, another Republican, Dana Baiocco, is expected to be confirmed to take Democratic Commissioner Marietta S. Robinson’s seat. Both Buerkle and Robinson have antiregulatory reputations, leading to criticism from some consumer advocacy groups, even though both have decades of experience in consumer product safety regulation. What does this mean for the industry? Given their backgrounds, the new combination of commissioners will likely line up with President Trump’s antiregulatory agenda and result in a cooperative approach with industry. But beyond this, business as usual probably won’t change drastically at the CPSC.New Balance of Commissioners at the CPSCMs. Buerkle was named acting chairman of the CPSC early in the Trump administration. As many expected, President Trump then nominated her to be permanent chairman of the Commission in July of last year. After a contentious confirmation hearing in September, the Senate committee voted along party lines to advance her nomination to the Senate floor. The full Senate vote, however, never happened and her name—along with about 100 other pending appointments—was returned to the president as required following the end of a congressional session. Ms. Buerkle and the other returned nominees did not have the unanimous consent often given by the Senate to waive that rule. Ms. Buerkle recently cleared the committee process again and her eventual Senate confirmation appears assured.Ms. Buerkle is no stranger to the CPSC. Appointed by President Obama, Ms. Buerkle has already served four years as a commissioner. Because federal statute prevents filling more than three seats with the same party, President Obama gave Mitch McConnell the choice for the open seat. Senator McConnell tapped Ms. Buerkle as a safe ideological ally.At the time, Ms. Buerkle was looking for a way to return to public service. She had recently departed Congress after serving one term as a member of the congressional delegation from New York. She won election as a conservative candidate in the Tea Party wave of 2010 and lost a rematch in 2012. Though she accepted the seat on the CPSC in 2013, she declared her intent to run again for Congress. That never happened, as she found a home at the CPSC. In 2017, Ms. Buerkle described her service as acting chairman of the CPSC to be a culmination of many parts of her life working in advocacy. Before entering politics, Ms. Buerkle was a nurse, then a medical malpractice attorney, and finally a New York assistant attorney general.Ms. Baiocco, the newly nominated commissioner, is an experienced product safety attorney who brings a different background to the CPSC. Her nomination followed a similar path in the Senate last year to that of Ms. Buerkle, and she was also re-nominated and cleared the Senate committee earlier this month. Ms. Baiocco made her name in product-liability corporate defense, representing clients in lawsuits that also drew attention from the CPSC. In one notable case, Ms. Baiocco represented Yamaha in litigation regarding the rollovers of their Rhino off-road vehicles. Following these suits, the CPSC helped Yamaha implement a recall program for the vehicles.Ms. Baiocco’s consumer-products interests run in the family. Her husband—also a lawyer—has defended IKEA in the recent dresser tip-over suits. Notably, IKEA’s dressers have also been a focus of CPSC action. Anticipating scrutiny over potential conflicts, Ms. Baiocco has promised to recuse herself from any matter in which she or her husband have a direct financial interest or that will have a direct or predictable effect on her husband’s firm.How Will Buerkle’s Confirmation Change the CPSC?Because the CPSC’s mandate is to protect the public from “unreasonable risks of injury” in consumer products, its leader has a substantial ability to influence how this mandate is carried out.Much of the CPSC’s discretion can be seen in its day-to-day actions. For instance, the CPSC’s compliance work is often carried out through voluntary recalls in conjunction with product manufacturers, distributors, and retailers. New leadership may decline to push for some recalls based on a different perception of what types of incidents rise to the level of seriousness to merit such action. In addition, even CPSC’s mandatory enforcement authority comes with a degree of discretion. As many of our readers will <a href="https://classdismissed.mofo.com/consumer-products/cpsc-magnet-set-safety-standards/">recall</a>, former Chairman Elliot Kaye generated controversy with unprecedented enforcement efforts against high-powered magnet ball sets. We expect this type of discretionary enforcement to continue to decline under Ms. Buerkle.Another major role of the Commission is to set product safety standards, which it accomplishes in one of two ways: (1) rulemaking or (2) coordination with industries for voluntary standards. Again, the Commission has significant discretion, and Ms. Buerkle prefers consensus voluntary standards. She made this patently clear during the nomination process, refusing to back down from this goal in her first confirmation hearing in September. For example, Senator Bill Nelson (D-Fla.) questioned Ms. Buerkle about her vote against a rule to improve the safety of portable electric generators in favor of allowing the industry to voluntarily improve safety standards on its own. Senator Nelson argued that manufacturers would not follow voluntary standards to improve safety. In response, Ms. Buerkle disagreed and insisted she could raise safety standards faster and more effectively through the industry consensus aspect of voluntary standards.Ms. Buerkle’s nomination may also prompt change to the CPSC’s public database for consumer safety complaints. As part of the 2008 Consumer Product Safety Improvement Act, Congress mandated that the CPSC create a public portal and a publicly accessible, searchable database of consumer product incident reports. Manufacturers are given 10 days in which to respond to the complaints before their publication, but CPSC will not withhold comments unless the manufacturer can demonstrate with indisputable facts or documentation that the report is materially inaccurate. Under the current system, the CPSC does not itself verify the accuracy of the complaint. Manufacturers have complained that the database makes it too easy to upload false information. In support of manufacturers, Ms. Buerkle voted to defund the database during her term in Congress. As chairman, she will not have the power to scrap the database, but she may have the power to influence how information is reported and verified in the database.How Will This Affect Consumer Product Manufacturers?We expect the CPSC will defer more to industry under Ms. Buerkle’s leadership, but significant changes are unlikely for two reasons. First, much of the regulatory function of the CPSC is statutorily outlined. In comparison to some other federal agencies, the CPSC often has little discretion under its governing statutes. For instance, in the Children’s Gasoline Burn Prevention Act of 2008, Congress passed a law requiring that closures on portable gasoline containers conform to specific child-resistance standards. As a result, these standards were incorporated into the CPSC’s consumer product safety rules without a need for rulemaking from the Commission. Because many of its governing statutes impose specific product safety standards such as these, or leave little room for interpretation, a change in leadership at the CPSC will not change most existing consumer product rules.Second, Ms. Buerkle and Ms. Baiocco are dedicated to product safety, even if they approach the issue with a different philosophy than former Chairman Kaye. Ms. Buerkle has described herself as an “across-the-board conservative,” and as such has publicly declared her dedication to reducing government spending and the costs of regulations to American businesses. But Ms. Buerkle’s goals, despite consumer advocate groups’ protests, are not incompatible with the CPSC’s mission. Ms. Buerkle has shown a spirit of public service in her careers as a nurse, a lawyer, and a public servant. Her advocacy of product safety should be expected to continue, though with stronger coordination and cooperation with industry.Similarly, though Ms. Baiocco will presumably also keep industry needs in mind, she should likewise be trusted to protect consumers’ interests. Ms. Baiocco’s nomination, given her involvement in defending corporations in high-profile consumer products lawsuits, was undoubtedly intended as a pro-industry signal. Yet her career of corporate advocacy gives her a strong foundation in industry risks and potential abuses in product safety. She can be expected to effectively weigh consumer interests against those of manufacturers, distributors, and retailers when evaluating product safety.Although it represents a shift at the CPSC, the changing leadership is certainly not the downfall of consumer product safety, as some consumer advocacy groups have predicted. Increased cooperation with industry, including a strong preference for voluntary standards over regulation, can be an effective strategy for reaching consensus and maximizing industry compliance with consumer product safety standards.

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

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Co-Chair, Litigation Department

Erin Bosman is the global co-chair of Morrison Foerster’s litigation department. Erin is also the founder and co-head of the Artificial Intelligence group and former chair of the Complex Litigation + Advisement practice group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is the Global Co-Chair of Morrison Foerster’s Litigation Department. Erin is also the founder and co-head of the Artificial Intelligence Group and former chair of the Complex Litigation + Advisement Practice Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

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Julie Park provides analytic and strategic counsel for issues in product life cycle, product liability and defective products, consumer class actions, and more.

Julie Park

Julie Park | Product Liability Lawyer

Julie Y. Park

Nomination of a New Chairman at the CPSC