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

Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

<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

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class action lawsuits. Claudia also regularly counsels clients in the food, cosmetics, retail, and technology industries. She represents companies in false advertising disputes before the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc.<h5>More about Claudia</h5>Claudia is active in MoFo’s pro bono efforts, and recently traveled to El Paso, Texas, to work with families separated and detained at the border. She is also supervising a pro bono collaboration with Equal Rights Advocates, a nonprofit fighting for gender justice in work places and schools across the country. The initiative will help students who have been victims of sexual assault, attempted assault, or harassment find support and seek justice. Claudia is also a board member of Bay Area Legal Aid and a former board member of Equal Rights Advocates. Claudia is an editor and frequent contributor to MoFo’s <a href="https://classdismissed.mofo.com/">Class Dismissed</a> blog, which provides reports about the latest defense news, developments, and trends in class action lawsuits and product liability issues that affect consumer-facing companies. Her perspectives are also respected in the larger legal community: Claudia has published articles about class action and false advertising issues, and is a co-author of Chapter 7 — “Unfair Competition in California Business Litigation 2016” — of The Recorder. She also regularly speaks at conferences on class action and advertising trends. Claudia is currently serving as a Lawyer Representative for the Northern District of California. She received her J.D. degree in 2004 from Berkeley Law (Boalt Hall School of Law), where she was an associate editor of the Berkeley Technology Law Journal.

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Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

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

Adam J. 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.Mr. Hunt has extensive experience representing consumer products companies, financial institutions, and technology firms in class action cases and complex commercial disputes before state and federal trial courts, as well as in arbitrations. Clients seek Mr. Hunt’s counsel for his creative, strategic thinking in high-stakes, high-profile matters. He has represented clients facing claims under false advertising, antitrust, and privacy laws throughout the country, securing wins at the pleading stage, summary judgment, and trial, in addition to negotiating favorable settlements, often early in the case. Representative experience includes successfully securing rulings dismissing two putative false advertising class action cases against one of the best-known consumer electronics companies in the world; obtaining a complete win on summary judgment for a major shipping and logistics company in a multimillion-dollar commercial dispute; appearing as counsel at trial for a leading financial institution in a $100 million commercial dispute, winning a bench trial verdict; and prevailing on motions to dismiss false advertising class actions against a leading Greek yogurt company.Mr. Hunt is also an editor of the firm’s <a href="https://classdismissed.mofo.com/" target="_self">Class Dismissed blog</a>, which provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class action lawsuits that affect consumer-facing companies.Mr. Hunt maintains an active pro bono practice and is the recipient of the New York State Bar Association’s 2017 President’s Pro Bono Service Award for the First Judicial Department, the 2018 Public Service Award from New York University School of Law, and Morrison Foerster’s Kathi Pugh Award for Pro Bono Services.Mr. Hunt received his B.A. with honors from Swarthmore College and his J.D. cum laude from New York University.

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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

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Alexandra Preece Barlow

Adam J. Hunt

The Future of Section 230: Protection Against Product Liability Claims?

New Wave of PFAS Legislation Aimed at Consumer Products

CPSC Releases Annual Report on Deaths and Injuries Involving Nursery Products

CPSC Proposes New Safety Rules for Infant Rockers

CPSC Commissioners Abstain from Retracting Infant Sleep Product Statements

On November 21, 2015, the Unmanned Aircraft Systems Registration Task Force Aviation Rulemaking Committee, chartered by the FAA, issued its Final Report to the FAA containing the Task Force’s recommendations for how the FAA should implement a national drone registry system.  With the dueling goals of maintaining safety in the National Airspace System (NAS) while also encouraging the emergence of the nascent UAS industry, the Task Force was given a difficult job:  “develop recommendations for the creation of a registration process” for sUAS.  The Final Report is particularly timely, as somewhere between 500,000 to 1 million drones (nearly all of which will be sUAS) are expected to be sold in the United States over the upcoming holiday season.The Task Force’s RecommendationsAlthough the final report contains ample evidence of disagreement amongst the Task Force’s 25 members (which ranged from Google to DJI to Walmart), a “general consensus” was ultimately reached on the following recommendations:<ol><li>Users must fill out “an electronic registration form through the web or through an application, which would immediately provide the user with an electronic certificate of registration and a personal universal registration number for use on all sUAS owned by that person.”</li><li>The registration number must be marked on the sUAS before operations in the NAS in a way that is “readily accessible.” A user could also opt to identify the drone using the unique serial number provided by the manufacturer in lieu of using the FAA-generated registration number.</li><li>The registrant must be at least 13 years old and provide his or her name and physical address to the FAA.</li><li>Registration should encompass an “education component,” similar to Know Before You Fly.<a href="#_ftn1" name="_ftnref1">[1]</a></li><li>Drones that weigh 250 grams or less, including the aircraft, payload, and any other associated weight, would be exempted from the registration requirement.</li></ol>According to the Task Force, these recommendations will serve the goals of: (i) educating users on the safe operating rules for sUAS; (ii) linking a sUAS to the operator in the event of an incident or accident; and (iii) taking a risk-based approach to registration.Although the recommendations appear straightforward, they leave some unanswered questions.  For example, how useful will a registration number be in the event a drone actually collides with, and is completely destroyed by, a manned aircraft?  And what good is the 250 gram exemption when nearly every drone, even toys, weighs more than that?  The Task Force implicitly acknowledged these questions, but did not answer them, citing the “time-limited tasking” they were given by the FAA.Despite these questions, it is anticipated that the FAA will adopt, in large part, the Task Force’s recommendations and issue a “direct final rule” requiring registration through its “emergency” rulemaking power under the Administrative Procedure Act (APA).  In doing so, the FAA will ignore outstanding legal questions about the process by which it will issue the registration rule, as well as whether it even possesses the underlying authority to adopt the rule.The FAA’s “Emergency” RulemakingGenerally speaking, under the APA, an agency like the FAA cannot make rules without giving the public notice and an opportunity to comment on the proposed rule.  See 5 U.S.C. § 553(b).  In limited circumstances, however, an agency can forgo the standard notice-and-comment requirements and directly issue a final rule. 5 U.S.C. § 553(b)(3).  Pertinent here, when an “agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest,” the notice-and-comment period can be bypassed. 5 U.S.C. § 553(b)(3)(B).“Emergency rulemaking” usually follows situations that require immediate action (such as a national disaster), minor technical amendments that do not affect the substantive law, or instances where Congress has directed the action in legislation.  Nonetheless, the FAA is apparently considering the absence of rules regarding public registration of drones to be an “emergency,” and it appears ready to issue a final rule without allowing for public comment.Under the “good cause” exemption, the FAA itself determines whether to invoke emergency rulemaking, and challenges to the final rules can only be filed after the rules are promulgated.  Moreover, despite courts’ cautioning they will “narrowly construe” agency actions utilizing the emergency rulemaking exception, in reality the agency’s action is often left untouched.It is unlikely the FAA will try to justify emergency rulemaking by stating that the public interest is not involved (in fact, the Task Force’s Report proves the opposite).  Moreover, because the notice-and-comment requirements are presumptively applicable to all substantive rulemaking, the FAA likely will not attempt to assert that the traditional rulemaking process is “unnecessary.”  Thus, the FAA will likely try to justify this “emergency” treatment on the ground that the notice-and-comment period is “impracticable.”“Impracticable” has generally been defined to refer to a situation in which the required execution of agency functions would be unavoidably prevented by public rulemaking proceedings.  However, “time constraints” and the “imminence of a deadline” are considered “inadequate justifications to invoke the good-cause exemption, especially when it would have been possible to comply with [a] statutory deadline.”<a href="#_ftn2" name="_ftnref2">[2]</a>  Put another way, an agency cannot create its own “emergency” (intentionally or otherwise) by delaying announcement of proposed rules.That begs the question:  is the FAA’s emergency rulemaking for drone registration valid?On February 14, 2012, in the FAA Modernization and Reform Act of 2012 (the “2012 Act”), Congress instructed the FAA to issue rules for the “safe integration” of UAS by September 30, 2015.  Although the FAA has issued its Notice ofProposed Rulemaking, and comment period has closed, the FAA has yet to finalize these rules, despite nearly four years lapsing between Congress’s mandate and today.With that background, the FAA now intends to issue the Registration Rules directly within the next month, presumably before the massive influx of sUAS enters the NAS this holiday season.  If the holiday shopping “deadline” is the impetus for the FAA’s “emergency” rulemaking, it seems that the FAA is the cause of its own crisis, and its action may be vulnerable if challenged.In an analogous situation, the FAA claimed that “good cause” was present, and bypassed the notice-and-comment requirements, when promulgating Penalty Rules for violations of FAA regulations.<a href="#_ftn3" name="_ftnref3">[3]</a>  There, a private petitioner challenged the FAA’s action and a federal appellate court held that the FAA was required to follow the APA’s notice-and-comment requirements because the rule substantially affected the petitioner’s (and others’ similarly situated) substantive rights.  The Court further pointed out that the “good cause” exception should be used for “housekeeping” matters, which are traditionally thought of as purely procedural rules.  Notably, in that case, the FAA waited only 9 months to begin promulgating the rules.  Here, it has waited years.If an agency can create its own emergency to bypass the APA’s notice-and-comment requirements, public comment will effectively be optional for agencies.  This not only creates perverse incentives for agencies directed to make rules for hotly debated topics like drones to do so through emergency rulemaking in the hopes of avoiding extensive and controversial public comment, but it also, ironically, threatens to slow down the entire rulemaking process, as lawsuits will inevitably follow such actions.<a href="#_ftn4" name="_ftnref4">[4]</a>Hobbling the Hobbyists?In addition to the FAA’s procedural shortcuts, the issues of both who and what the registry would encompass present legal challenges.  Under the Task Force’s model, registration would apply to commercial and hobbyist users alike.  In addition, users wouldn’t be registering their drones with the FAA; they would be registering themselves.Traditionally, model aircraft flown for hobby or recreational purposes have not been subject to any registration requirements.  This understanding was codified under Section 336 of the 2012 Act, which provides that “notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies . . . the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft,” so long the aircraft meet certain criteria.  Congress defined “model aircraft” under Section 336 as “an unmanned aircraft that is capable of sustained flight in the atmosphere, flown within visual line of sight of the person operating the aircraft, and flown for hobby or recreational purposes.”According to the FAA, the 2012 Act does not affect its ability to require registration of drones flown for hobby or recreational purposes.  The agency’s stance is that registration has been exempted for model aircraft only through the use of its own discretion, and that prior law unrelated to the incorporation of UAS into FAA plans and policies, specifically 49 U.S.C. 44101(a), gives it the authority to require registration of model aircraft.  Notably, the Task Force recognized that, despite the FAA’s assertions, the agency may actually lack authority to require registration of drones used for hobby or recreational purposes.  Nonetheless, the Task Force did not address that issue because it was “outside the scope of the Task Force’s objectives[.]”The FAA’s position is the latest move away from its hands-off attitude towards model aircraft, dating back at least to mid-2014.  In June of last year, the FAA issued its “Interpretation of the Special Rule for Model Aircraft.”  There, the FAA claimed that model aircraft are “subject to all existing FAA regulations.”  More recently, the rules proposed in the Notice of Proposed Rulemaking for sUAS exempt various types of aircraft or flying vehicles from their ambit, such as moored balloons, kits, amateur rockets, among others, but not model aircraft.Taken together, the FAA’s actions suggest that model aircraft are likely to be subject to increasing regulation.  However, it is unclear how to reconcile the plain text of Section 336 of the 2012 Act with the FAA’s registration scheme or with the FAA’s own interpretation of Section 336, for that matter.  In the Interpretation of the Special Rule for Model Aircraft, the FAA noted that “a model aircraft operated pursuant to the terms of section 336 would potentially be excepted from a UAS aircraft certification rule[.]”  It is difficult to see how a registration requirement is different.A second and distinct question concerns whether the FAA has the authority to register people, as opposed to planes, as the Task Force recommends through its one-unique-number-per-person plan.  The FAA has stated that it has the authority to require the registration of any “aircraft” that flies in the NAS, but if a user has many unique aircraft all with the same number, it is the person, not the aircraft, that is being tracked.Other conflicts abound.  Under current law, in order to register an aircraft, the aircraft must be owned by a citizen of the United States, a lawful permanent resident, or a corporation doing business under the laws of the United States or a state.  49 U.S.C. § 44102. Yet, the Task Force recommends a rule that would not require citizenship or lawful permanent resident status.  If “aircraft” is the registration hook for the FAA, these other statutory requirements might apply to sUAS users.ConclusionThe Task Force’s recommendations appear simple enough.  But lurking beneath the surface are complicated issues of agency process and the FAA’s authority that may be primed for takeoff.  <a href="#_ftnref1" name="_ftn1">[1]</a> <a href="http://knowbeforeyoufly.org/">http://knowbeforeyoufly.org/</a>.<a href="#_ftnref2" name="_ftn2">[2]</a> 2 Am. Jur. 2d Administrative Law § 185 (2012) (emphasis added).<a href="#_ftnref3" name="_ftn3">[3]</a>Air Transport Assoc. of Am. v. Dep’t of Trans., 900 F.2d 369 (D.C. Cir. 1990) (“[T]he FAA is foreclosed from relying on the good cause exception [from the APA,] by its own delay in promulgating the Penalty Rules. The agency waited almost nine months before taking action to implement its authority under section 1475. At oral argument, counsel for the FAA conceded that the delay was largely a product of the agency’s decision to attend to other obligations. We are hardly in a position to second guess the FAA’s choices in determining institutional priorities. But insofar as the FAA’s own failure to act materially contributed to its perceived deadline pressure, the agency cannot now invoke the need for expeditious action as “good cause” to avoid the obligations of section 553(b).”).<a href="#_ftnref4" name="_ftn4">[4]</a>  Another potential problem for the FAA is Executive Order 12866, which requires agencies to complete a cost- benefit analysis for rules that, among other things, raise novel legal or policy issues.  Given that drone registration will likely raise both novel legal and policy issues, such an analysis may be required.

Task Force Makes Drone Registration Recommendations Expected to Be Adopted by the FAA, But on What Authority?

On November 21, 2015, the Unmanned Aircraft Systems Registration Task Force Aviation Rulemaking Committee, chartered by the FAA, issued its Final Report to the 

Task Force Makes Drone Registration Recommendations Expected to Be Adopted by the FAA, But on What Authority?

In Gyorke-Takatri v. Nestle USA, Inc., the United States District Court for the Northern District of California held that parties in a class action seeking to remove an action to federal court must provide sufficient admissible evidence supporting the jurisdictional basis for removal. No. 15-cv-03702-YGR.<a href="#_ftn1" name="_ftnref1">[1]</a>  Judge Yvonne Gonzalez Rogers remanded to California state court an action involving Gerber Products Co.’s Graduates Puffs as a result of insufficient admissible evidence.Gerber removed the action to federal court under the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d).  CAFA requires an amount in controversy of at least $5 million.  Gerber argued that the sales amount of Graduates Puffs in California exceeded $5 million during the alleged period and should satisfy the statutory amount.  Gerber attempted to prove this monetary amount through the affidavit of one of its employees who had reviewed sales data provided by a third party researcher tracking the sales of the product.  Gerber provided documents summarizing the third party sales data but failed to provide any documentation in regards to potential hearsay issues.Judge Gonzales Rogers ruled that the evidence was inadmissible multiple hearsay and not subject to any exception. The affidavit constituted inadmissible multiple hearsay because it was a document presenting information from a third party resource. Geber did not submit a declaration from anyone who had knowledge regarding how the data was collected or maintained. Nor did Gerber make any offer of how it intended to cure the defects.  As a result, Gerber could not prove it satisfied CAFA’s amount in controversy requirement by a preponderance of the evidence, and the action was remanded from federal court. <a href="#_ftnref1" name="_ftn1">[1]</a> Gerber’s product, Gerber Graduates Puffs, contains labels depicting vegetables and fruits.  Plaintiffs represent a class of California consumers who allege that these images misled consumers into thinking the products were healthier than they actually are.

Sales Data Alone Insufficient to Support CAFA Jurisdiction in Gerber’s Graduates Puffs Labeling Case

In Gyorke-Takatri v. Nestle USA, Inc., the United States District Court for the Northern District of California held that parties in a class action seeking to r

Sales Data Alone Insufficient to Support CAFA Jurisdiction in Gerber’s Graduates Puffs Labeling Case

On November 10, the federal Food and Drug Administration (FDA) announced that it is seeking public comments on use of the term “natural” on food labeling. FDA, “Natural” on Food Labeling (Nov. 10, 2015). The agency explained that its actions were prompted by the “changing landscape of food ingredients and production, and in direct response to consumers who have requested that the FDA explore the use of the term ‘natural.’” The announcement came as a surprise since FDA had previously declined requests from consumers, the food industry, and federal judges to define the term.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy mat

Claudia Vetesi

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

FDA Requests Public Comments on “Natural” Food Labeling

On November 10, the federal Food and Drug Administration (FDA) announced that it is seeking public comments on use of the term “natural” on food labeling. FDA, 

FDA Requests Public Comments on “Natural” Food Labeling

An Illinois federal judge recently certified a class of consumers who allege that Sturm Foods and its parent company Treehouse Foods Inc. marketed their Grove Square Coffee pods for use in Keurig Inc. brewers—and designed them to mimic Keurig’s “K-Cups” that yield fresh coffee—but hid the fact that they were 95% instant coffee by using the terms “soluble and microground” on the package labels.  Suchanek et al. v. Sturm Foods Inc. et al., No. 3:11-cv-00565.  This class includes consumers who bought Grove Square Coffee products in Alabama, California, Illinois, New Jersey, New York, North and South Carolina, and Tennessee.This decision comes after the previously assigned district court judge (Judge G. Patrick Murphy (Ret.)) sided with Strum on class certification and summary judgment and dismissed the suit.  Judge Murphy held that the plaintiffs failed to show that every class member has been harmed by Sturm’s alleged mislabeling or deception.  He noted that the plaintiffs may have been motivated to buy Grove Square Coffee because of its price point, the desire to try new things, or a host of other factors.  On appeal, the Seventh Circuit disagreed, finding that factual disputes about the packaging called for a trial rather than summary judgment.  In addition, the Seventh Circuit held that the class certification commonality requirement was satisfied because the question of whether the packaging was likely to mislead a reasonable consumer applied to every class member.On remand, the case was re-assigned to Judge Nancy J. Rosenstengel who granted the plaintiffs’ motion for class certification.  Judge Rosenstengel found that commonality and typicality were met because plaintiffs claimed that they would not have purchased Grove Square Coffee pods, or paid as much as they did, but for the misleading packaging.  She also ruled that the plaintiffs presented a viable damages model based on a full-refund theory.  Specifically, Judge Rosenstengel noted that there was “plenty of evidence in the record suggesting that consumers would not have purchased GSC but for its deceptive labeling that created and/or failed to correct the misimpression that GSC was premium, ground coffee.”Moreover, even though Sturm had modified the language on the labels during the class period to say “instant and microground,” Judge Rosenstengel found that the class properly included consumers who purchased after the label change because the plaintiffs provided evidence showing that consumers continued to complain about being misled after the change took place.

Consumers Win Class Certification in Sturm Foods’ Grove Square Coffee Pod Suit

An Illinois federal judge recently certified a class of consumers who allege that Sturm Foods and its parent company Treehouse Foods Inc. marketed their Grove S

Consumers Win Class Certification in Sturm Foods’ Grove Square Coffee Pod Suit

On November 2, 2015, Judge Alsup of the Northern District of California dismissed a consumer class action against food manufacturer Plum Organics for failure to state a claim. In Workman et al. v. Plum Inc., D/B/A Plum Organics, Case No. C 15-02568, the putative class alleged that Plum Organics’ Mighty 4® puree pouches and fruit bars were deceptive because their labels showed pictures of pumpkin, pomegranate, and other ingredients that were not the products’ most prominent ingredients. The plaintiffs argued that this allegedly deceptive advertising was a violation of the California Consumer Legal Remedies Action, Section 1750, and the California Business and Professions Code, Section 17200. Plum Organics moved to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), lack of standing, and failure to plead with particularity as required by Fed. R. Civ. P. 9.Judge Alsup applied a “reasonable consumer test” to hold that the plaintiffs’ allegations did not amount to a plausible claim, as required by Ashcroft v. Iqbal, 556 U.S. 662 (2009). The operative question was whether members of the public are likely to be deceived by the product at issue. He found that a reasonable consumer would not be deceived by the labels at issue. For one, there was no misrepresentation: the food items pictured on the label were ingredients in the products. Moreover:<blockquote>In contrast to plaintiff’s assertions, a reasonable consumer would simply not view pictures on the packaging of a puree pouch or box of fruit bars and assume that the size of the items pictured directly correlated with their predominance in the blend. One can hardly walk down the aisles of a supermarket without viewing large pictures depicting vegetable or fruit flavors, when the products themselves are largely made up of a different base ingredient. Every reasonable shopper knows that the devil is in the details. Moreover, any potential ambiguity could be resolved by the back panel of the products, which listed all ingredients in order of predominance, as required by the FDA.</blockquote>The take-aways from this holding may be critical to food-labeling matters: (1) deception claims are still subject to dismissal on the pleadings and (2) the “reasonable consumer test” assumes that a reasonable shopper would not rely on pictures on the front of product packaging without reading the ingredient list. The latter finding may be especially useful in disposing of food‑labeling litigation at the outset. Indeed, Judge Alsup granted a complete dismissal, without leave to amend, since “the labels at issue are not deceptive and the labels themselves cannot be changed by a new complaint.”Read more about the “reasonable consumer test” on our September 14th post on <a href="http://www.privatesurgeongeneral.com/2012/09/14/are-reasonable-consumers-free-to-ignore-ingredient-lists/">Williams v. Gerber Products Co</a>.

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Arbitration of Breach of Contract Claims

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Processing Speed Class Action Litigation

Automatic Renewal Law Class Action Litigation

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Personal Injury and Class Action Multidistrict Litigation Involving Supplement

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Alexis is a skilled class action and commercial litigator, and practices in a variety of high-profile areas, including: Breach of contract, Complex consumer class actions, False advertising, Federal banking law










Alexis Amezcua

Alexis’ practice focuses on a variety of substantive areas, including breach of contract, wrongful termination, trade secret theft, unfair competition, product liability, federal banking law, complex consumer class actions, and wrongful death. Alexis has represented both plaintiffs and defendants, and her practice includes substantive arbitration experience, as well as trial experience in state and federal courts. She is a frequent speaker and author on topics related to arbitration, the Servicemembers Civil Relief Act, consumer class actions, and consumer product safety.What do you like best about your work? I love the “chess game” of litigation. As a litigator, my job is to be steps ahead of my opponent and think strategically about where the other party is going, why, and how we can best outmaneuver him or her. It means brainstorming with my whip-smart team members and clients, understanding our goals, and, of course, jumping into the ring (figuratively) at hearings, depositions, and, ultimately, at trial.What do you enjoy doing in your free time? In my free time, I most enjoy spending time with my 3-year-old daughter, husband, and extended family, usually during outdoor or travel excursions. What is your favorite thing about living in your current city? We live in Burlingame, mid-way between San Francisco and Palo Alto. I love its walk- and bike-ability. We bike almost everywhere on the weekends, including to parks, restaurants, and the library. It sure beats having to wrestle a toddler into a car seat.

Alexis A. Amezcua

False Advertising Suit Regarding Plum Organics Mighty 4 Puree Pouches Dismissed

On November 2, 2015, Judge Alsup of the Northern District of California dismissed a consumer class action against food manufacturer Plum Organics for failure to

False Advertising Suit Regarding Plum Organics Mighty 4 Puree Pouches Dismissed

On October 19, 2015, U.S. Transportation Secretary Anthony Foxx and Federal Aviation Administration (FAA) Administrator Michael Huerta announced a plan to require unmanned aircraft vehicle (UAV or “drone”) users to register their UAVs with the FAA.  While commercial users were already subject to registration requirements, the new scheme would extend to recreational users, a group expected to swell by millions in the coming holiday season.  Coming close on the heels of the FAA’s unprecedented $1.9 million proposed penalty against SkyPan International, Inc. (“SkyPan”), the announcement suggests that the FAA is under pressure to respond to popular concerns around soaring drone use and increasing reports of unsafe drone operation.The FAA’s Registration PlanSecretary Foxx noted that the registration scheme will further at least two key goals of the FAA.  First, it provides the agency with an opportunity to engage and educate new users regarding safe drone operations before these new users start flying.  Second, and perhaps more importantly, “Registration of all aircraft, including, unmanned aircraft, is an important part of ensuring accountability,” said Foxx.  Where drone operators do break the rules, a registration requirement ensures investigators can identify an operator—or at least an owner—from a drone involved in an incident.While the shape and scope of the registration program remains undetermined, the FAA is aiming to have a system in place prior to the holiday season.  This accelerated timeline is in stark contrast to the typical FAA process where the proposal and comment process can stretch a year or more, as well as the FAA’s repeated inability to meet deadlines for issuing regulations for drones.  The FAA has assembled a task force, including representatives from industry groups, government officials, and experts from leading drone companies, to explore how to create a registration program that ensures appropriate registration of drones without becoming overly burdensome.  The task force’s recommendations are due by November 20, 2015.The FAA’s initial announcement was light on details about how the registration scheme would be implemented.  Given the incredible diversity of vehicles that could be considered a “drone,” there was immediate concern about the scope of the registration requirement.  Some commentators noted that the registration scheme for commercial drones requires actual carbon copy forms to complete, a process that would be near-impossible to scale to meet the demands of the exploding consumer drone market.  On Thursday, October 22, 2015, however, the agency published a “<a href="https://www.federalregister.gov/articles/2015/10/22/2015-26874/clarification-of-the-applicability-of-aircraft-registration-requirements-for-unmanned-aircraft">Clarification and Request for Information</a>” regarding the announcement, inviting public comment on the registration plan and demonstrating that the agency is aware of the difficult questions the plan raises.The FAA specifically requested “information and recommendations regarding what information and registration platform would be appropriate for [UAV] registration and ways to minimize the burden to the regulated community.”  In addition, the agency asked for feedback regarding “which [UAVs], based on their weight or performance capabilities, warrant a continued exercise of discretion with respect to requiring registration because of the negligible risk they pose to the national airspace system.”  The window for public comment closes November 6, 2015.While the FAA’s request for comment is an encouraging sign that it recognizes the issues and challenges of requiring registration, how the FAA will address those remains to be seen.  Among these are: who should bear the burden of creating and administering the program; how should costs be allocated among the government, industry, and users; what drones should be subject to the registration requirement; and how should the FAA address the millions of existing drones in the marketplace.Efficacy Questions and Legal HurdlesBoth Foxx and FAA Administrator Michael Huerta cited the safety concerns posed increasing drone use as driving the registration requirement.  Not surprisingly, the FAA is likely to rely on the public safety issue to justify bypassing normal rulemaking procedures.  Yet how the registration program itself will address those issues is unclear.  For instance, the FAA recently released a report in August titled “Pilot Reports of Close Calls with Drones Soar in 2015,” documenting reports of drone sightings.  Overwhelmingly, the cases involved pilots seeing drones at a distance and even in the ten cases where pilots took evasive action, the drone involved was not recovered.  It’s unclear how the registration requirement would address the safety issues in such cases or increase accountability.Also left unspecified was how the agency intends to deal with existing drones. The agency appears to be assuming the requirement will apply retroactively.  “One of the things the task force will look at is what sorts of provisions will be made for people who already own drones.  We would expect retroactive registration.  There may be a grace period, the task force will make a recommendation,” Foxx said.In addition, whether the FAA is limited in its ability to require registration by existing legislation governing the FAA’s authority over recreational drone users remains uncertain.  The FAA Modernization and Reform Act of 2012 included limits on the FAA’s ability to make rules or regulations for model aircraft under 55 pounds flown strictly for recreational or hobby use.  We expect the FAA will face legal challenges to its authority to make registration a requirement for recreational drone use.Finally, some industry observers are extremely skeptical of the FAA’s ability to create a registration system on the timeline the agency has proposed.  Jim Williams, the former top drone official at the FAA, told the Wall Street Journal that the timeline was “unprecedented” and if the FAA managed to hit its goals, “[i]t would be the most amazing feat of governance I’ve seen in my 33 years in the federal government.”The SkyPan Fine: Facts of the IncidentThe FAA’s recent registration announcement follows the announcement of a nearly $2 million proposed civil penalty against an urban drone operator—SkyPan International—for “endangering the safety of our airspace.”SkyPan is a Chicago-based aerial photography company. According to SkyPan’s website, the company uses proprietary Remote Piloted Vehicles (RPVs) to shoot aerial and panoramic photographs for developers and construction and marketing companies. SkyPan is a Section 333 UAS Exemption Holder for flying its RPVs to conduct its commercial operations, but that exemption is subject to strict limitations.The FAA alleged that SkyPan conducted 65 unauthorized commercial UAV flights over New York City and Chicago airspace between March 21, 2012 and December 15, 2014, including 43 flights that flew in the highly restricted New York Class B airspace without air traffic control clearance.  The FAA alleges that the operations violated airspace regulations and various operating rules as the UAVs used in flights did not meet federal requirements.  The UAVs in question were flown without the necessary air-traffic-control clearance and were not equipped with two-way radios, transponders, and altitude-reporting equipment.  The drones also lacked airworthiness certificates and effective registrations, and SkyPan did not have a Certificate of Waiver or Authorization from the FAA for the operations.In its press release, the FAA alleged that SkyPan operated the aircraft in a “careless or reckless manner so as to endanger lives or property.”  Huerta said, “Flying unmanned aircraft in violation of the Federal Aviation Regulations is illegal and can be dangerous.  We have the safest airspace in the world, and everyone who uses it must understand and observe our comprehensive set of rules and regulations.”SkyPan has 30 days after receiving the FAA’s enforcement letter to respond to the agency, and potentially appeal the proposed penalties.The FAA StirsThe proposed penalty is almost a hundred times greater than any past fine for drone operations.  According to the FAA’s spokesperson, Les Dorr, the largest fine before the proposed action against SkyPan was lodged against Xizmo Media, a New York video production company, for $18,700.  Dorr indicated that most fines have ranged between $1,100 to $5,000.The FAA stated that one reason for the size of the fine was that FAA inspectors had issued several warnings to SkyPan regarding the flights, but the company had continued with its activities.  Huerta stated that “Clearly this was not inadvertent, someone making a mistake.  What we saw here was a pattern of disregard for FAA rules.”  Huerta said SkyPan stopped violating the rules this year, and the FAA approved SkyPan to use drones commercially after it submitted a plan to mitigate risk.Increasing concern on the part of legislators may help explain the FAA’s new sense of urgency.  On October 7, 2015, the House Subcommittee on Aviation convened a hearing on “Ensuring Aviation Safety in the Era of Unmanned Aircraft Systems,” which focused on ensuring aviation safety in the era of UAVs.  In the face of the increasing popularity of UAVs in the United States, the panel voiced concern about the FAA’s lack of progress in curtailing the risk of the sheer number of UAVs in U.S. airspace.More recently, on October 28, the Senate Subcommittee on Transportation, Housing & Urban Development questioned FAA chief Huerta on the agency’s failure to meet deadlines for finalizing drone regulations and how the agency planned to deal with safety concerns.  Reading from a prepared statement, Huerta called out the SkyPan fine as “a clear message to others who might pose a safety risk: Operate within the law or we will take action.”Even as the FAA sent a clear message on safety, however, Huerta’s comments raised additional questions about the scope of the proposed registration requirement.  The FAA chief hedged on whether the registration requirement would extend to model aircraft, highlighting the ongoing uncertainty around the agency’s next steps.Questions RemainingThe proposed SkyPan fine indicates to drone operators that the FAA will pursue vigorous enforcement actions, on a scale not previously seen, against those operators flagrantly violating the rules.  Yet the details of SkyPan’s flights have raised questions about how broadly the FAA intends to wield this authority.  SkyPan itself received a Section 333 UAS Exemption from the FAA in April this year, having submitted its application on December 22, 2014, shortly before the process was set forth in the NPRM.The FAA’s allegations encompass flights occurring as far back as 2012, when the regulatory framework, and the scope of the FAA’s authority, was less certain than it is today.  The agency’s proposed fine has intensified concerns about the lack of a clear regulatory framework governing UAV operators, particularly as SkyPan’s case shows the risk of large penalties for noncompliance.Similarly, while the FAA has stated that the details of the registration requirement have yet to be determined, an FAA spokesman told the New York Times that failure to register a drone would trigger civil fines of up to $27,500, and “if warranted,” criminal penalties up to $250,000 or up to three years in jail, or both.  The threat of such dire penalties, coupled with the extension of the registration requirement to existing operators, only heightens the stakes for the program and the potential threat to the drone industry generally.Next StepsBetween the SkyPan proposed penalty and the plan for a registration program, the FAA has demonstrated that it is willing to act to protect airspace safety.  It remains to be seen, however, whether the FAA’s new aggressive enforcement stance and registration plans will actually lead to safer, or more predictable, skies.

The FAA (Re)Acts: Drone Registration, a Federal Task Force, and Hefty Fines

On October 19, 2015, U.S. Transportation Secretary Anthony Foxx and Federal Aviation Administration (FAA) Administrator Michael Huerta announced a plan to requi

The FAA (Re)Acts: Drone Registration, a Federal Task Force, and Hefty Fines

Iconic California tech companies are helping to pioneer the drone revolution.  For over a year, Google’s advanced-research arm, Google X, has been testing its Project Wing aircraft in cooperation with NASA, moving ever-closer to its goal of deploying a fleet of drones to deliver goods to customers.  Elsewhere, Amazon, another tech giant, is building its own drone program, Prime Air, “a future delivery system from Amazon designed to safely get packages into customers’ hands in 30 minutes or less using small unmanned aerial vehicles.”  But drones are not the exclusive province of tech giants.  Countless startups with their eyes to the sky are adapting drone technology to many industries.  And California has emerged as the launching point.California Governor Jerry Brown has long supported technological innovation.  In 2012, for instance, he signed legislation that opened the door for testing autonomous vehicles in California.  So it should come as no surprise that Governor Brown considered bills to regulate drones with a critical eye following the recently concluded legislative session.SB 142 would have prohibited flying a drone below 350 feet unless the operator obtained express permission from the owners of property under the drone’s flight path.  Proposed by Hannah-Beth Jackson, D-Santa Barbara, the bill was meant to address privacy concerns.  The Governor vetoed it, explaining that “[t]his bill. . .while well-intentioned, could expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation. . .Before we go down that path, let’s look at this more carefully.”  Brown’s veto turned away a significant threat to California’s leading role in the drone revolution.Governor Brown also vetoed SB 168, which would have protected emergency responders from interference by drones when performing their duties.  Ted Gaines, R-El Dorado, introduced the bill because drones have been increasingly present at wildfires across California this year, in some cases hindering emergency operations.  The proposed law would have granted emergency responders immunity for damaging or destroying drones to remove them from the air.  It would also subject drone operators to fines of up to $5,000 and six months in jail.The one drone regulation bill approved by the Governor is intended to protect individuals from hi-tech paparazzi.  AB 856  proposed by Ian Calderon, D-Whitter, effectively amends the definition of “physical invasion of privacy” to cover instances in which paparazzi send drones into the air above someone’s land in order to capture photo or video.State and Local AirspaceSB 142 would have represented one of the more restrictive approaches to the operation of drones in the United States.  Forty-five states have considered 164 bills regulating drone operations, but often these regulatory measures aim to limit the use of drones for surveillance, rather than limiting drone flight altogether.  Florida, for example, prohibits a drone operator from capturing images of privately owned property without permission.  Texas prohibits drones from flying over critical infrastructure facilities but, at the same time, expressly allows individuals in certain professions to capture images used in those professions as long as no individual is identifiable in the image.Some states have also passed regulations prescribing how government agencies may use drones, including law-enforcement agencies.  Virginia’s HB 2125, entitled “Use of unmanned aircraft systems; search warrant required,” includes an “absolute prohibition on the use of unmanned aircraft systems by such law-enforcement and regulatory entities unless a search warrant has been obtained prior to such use.”  New Jersey’s similar bill not only would require government agencies to obtain a warrant prior to drone use in law enforcement, but also mandates that any data collected by the drone be deleted within two weeks of its collection.Keep Your Eyes PeeledDespite Governor Brown’s vetoes and a flurry of activity in state legislatures, the future of drone regulation could be largely determined by federal lawmakers.  The law applicable to drone operations depends, to a significant extent, on whether the anticipated regulations from the FAA “preempt” state and local authority.Drone manufacturers, suppliers, and operators want uniform federal standards for operations, rather than a state-to-state crazy quilt.  For this reason, many have called for inclusion of an “express preemption clause” in the ongoing FAA rulemaking for small Unmanned Air Systems to foreclose state and local governments from enforcing conflicting laws.  Absent an express preemption provision in the final rules, state and local regulation is not foreclosed but would instead be analyzed under existing conflict preemption principles on a case‑by‑case basis.  Because courts have often held that state regulation of traditional aircraft in the area of safety and operations is preempted by federal regulation, it would not be surprising if courts find that final federal regulations preempt at least some state laws in this area even in the absence of an express preemption provision.The FAA has yet to issue final regulations and clarify the legal landscape, but one thing is clear: the drone revolution is underway, and, in the United States, California is continuing to lead the charge.

Friendly Skies in California After Governor Brown Vetoes Drone Restrictions, Federal Response Uncertain

Iconic California tech companies are helping to pioneer the drone revolution.  For over a year, Google’s advanced-research arm, Google X, has been testing its P

Friendly Skies in California After Governor Brown Vetoes Drone Restrictions, Federal Response Uncertain

California’s Green Chemistry Initiative has taken another step forward with the issuance of guidance on the heart of the law, the analysis of safer substitutes for chemicals in consumer products.  On September 24, 2015, the California Department of Toxic Substances Control (DTSC) released its Draft Stage 1 Alternatives Analysis Guide (Guide) under its Safer Consumer Products (SCP) Program.  This is the first of two stages of the alternative analysis process released in draft for public comment.  The second stage is scheduled to be released during the first quarter of 2016.  The DTSC also added three new chemicals to its candidate list.The Guide is not issued as a regulation and does not have the force of law.  Rather, it is designed to provide more details from the DTSC about the general process for conducting an alternative analysis for a variety of responsible entities and a diverse set of product types.  The Guide also does not provide a single, specific approach for that analysis.  Instead, the responsible entity must decide which approaches, assumptions, tools, methodologies, data, and decision frameworks will best suit its particular situation.In broad overview, the framework for the alternatives analysis is set forth in the statute and previously adopted regulations:FIRST STAGE ALTERNATIVES ANALYSIS:<ul><li>Step 1: Identify product requirements and functions of Chemical of Concern.</li><li>Step 2: Identify alternatives.</li><li>Step 3: Identify factors relevant for comparing alternatives.</li><li>Step 4: Perform initial evaluation and screening of alternative replacement chemicals.</li><li>Step 5: Consider additional information.</li><li>Step 6: Complete preliminary alternatives analysis report.</li></ul>The Guide identifies “Other Compliance Options” in cases where a responsible entity has already completed an alternatives analysis or a similar comparative analysis.  The options include (1) an abridged analysis, (2) an alternate process analysis, or (3) a previously completed analysis.  Upon demonstration to the DTSC that the “information and analysis for a different approach are adequate for evaluating the Priority Product and the alternatives” and the information and analysis are sufficiently equivalent to the alternatives analysis process as set forth in the SCP regulations, the responsible entity may commence work under one of these options.Some of the key subjects discussed in the Guide include:Product Requirements and Alternatives<ul><li>Product function and performance – A responsible entity must describe a product’s functions and its specific applications to evaluate whether potential alternatives achieve the same or similar functions.” The function may include product characteristics and qualities.  The functions of the product and the product’s Chemical of Concern must be considered in the alternatives analysis.</li><li>Legal requirements – The specific requirements, performance standards and labeling requirements that a chemical, product or product packaging is required to meet under California or federal law must be evaluated.</li><li>Identifying Alternatives – <ul><li>Removing a Chemical of Concern from a Priority Product.</li><li>Reformulating or redesigning a Priority Product to eliminate or reduce the concentration of a Chemical of Concern in a Priority Product.</li><li>Redesigning a Priority Product to reduce or restrict potential exposures to a Chemical of Concern in a Priority Product.</li><li>Making any other change to a Priority Product that reduces the potential adverse impacts or potential exposures associated with the Chemical of Concern in a Priority Product.</li></ul></li></ul>Relevant Factors<ul><li>A potential factor becomes relevant if both of these requirements are met: <ul><li>The factor makes a material contribution to adverse public health impacts, adverse environmental impacts, adverse waste and end-of-life impacts, or material and resource consumption. This relates to a factor that is both meaningful and consequential to an observed outcome or impact.</li><li>There is a material difference in the factor’s contribution to the impacts between the Priority Product and one or more of the alternatives under consideration. This relates to a factor’s contribution to an observed impact that is both meaningful and consequential to the comparison of alternatives.</li></ul></li><li>Identifying relevant factors is an iterative process, part of the scoping process during both stages of the alternatives analysis process.</li><li>The responsible entity uses relevant factors throughout the alternatives analysis process to characterize, evaluate and compare impacts of the Priority Product and its alternatives.</li></ul>Impact Assessments<ul><li>Impact assessments can include the approaches, tools and information sources that a responsible entity may use to conduct its analysis.</li></ul>Screening Alternatives<ul><li>Approaches a responsible entity may use to narrow the list of alternatives will be evaluated in the second stage of the alternatives analysis.</li><li>Alternatives that would be an improvement over the Priority Product should be retained.</li></ul>DTSC is accepting comments on the Guide until October 23, 2015, and it will hold two webinars on October 7 and 21, 2015.SCP Regulations – Proposed CANDIDATE CHEMICAL LIST AMENDMENTAlso on October 2, 2015, the DTSC proposed to add three additional chemicals:  (1) 4-(1,1,3,3-tetramethylbutyl)phenol, ethoxylated, (2) 4-nonylphenol, branched and linear, and 3) 4-nonylphenol, branched and linear, ethoxylated to its Candidate Chemical List.  The DTSC will hold a public hearing on November 16, 2015, and it will accept comments until then.

Consumer Products “Either/Or”: California Issues Guidance on Alternatives Analysis for Safer Products

California’s Green Chemistry Initiative has taken another step forward with the issuance of guidance on the heart of the law, the analysis of safer substitutes 

Consumer Products “Either/Or”:  California Issues Guidance on Alternatives Analysis for Safer Products

The United States Department of Justice (DOJ) recently issued a memorandum to various enforcement agencies. The memorandum, available <a href="http://www.justice.gov/dag/file/769036/download">here</a>, focuses on holding individuals accountable for corporate fraud and misconduct.<a name="_ftnref1" href="#_ftn1">[1]</a> The DOJ has already shown it means business. Just days after the memorandum was published, a former corporate executive was sentenced to an unprecedented 28 years in prison for his role in knowingly shipping salmonella-tainted food products in 2008.<a name="_ftnref2" href="#_ftn2">[2]</a>Coupled with the Consumer Product Safety Commission’s (CPSC) increased enforcement efforts—evidenced by growing civil penalties<a name="_ftnref3" href="#_ftn3">[3]</a> and a wave of lawsuits directed at corporations<a name="_ftnref4" href="#_ftn4">[4]</a>—this new DOJ edict gives CPSC another leg to stand on when dealing with manufacturers, distributors, and retailers alike. As the DOJ and CPSC take steps to delve behind the corporate façade and hold individuals both criminally and civilly liable for their transgressions, corporate actors should take note of the possibility of harsh monetary penalties or, worse, time behind bars.The DOJ guidance, which applies to civil and criminal proceedings, encourages corporations to essentially self-report individual misconduct by offering corporate “cooperation credit.” This generally means mitigated punishment for corporations that cooperate in investigations or judicial proceedings. Such “cooperation credit” is conditioned on full disclosure of individual actors’ wrongdoings. Specifically, the DOJ memorandum states that for a corporation to be eligible to receive any cooperation credit, the company “must completely disclose . . . all relevant facts about individual misconduct.” Only after meeting this requirement will the corporation be eligible for cooperation credit.<a name="_ftnref5" href="#_ftn5">[5]</a>CPSC already has self-reporting requirements under the Consumer Product Safety Act (CPSA) that require manufacturers, distributors, and retailers to “immediately inform” CPSC of any potential substantial product safety hazard or unreasonable risks of serious injury associated with their products. 15 U.S.C. § 2064. In addition to these reporting requirements placed on corporations, the DOJ guidance may motivate CPSC to more closely monitor the actions of individuals behind the shroud of the corporate cloak.The DOJ guidance also encourages attorneys handling separate civil and criminal aspects of corporate investigations to routinely communicate with one another and focus on individual actors “from the inception of the investigation.” The guidance further redirects civil attorneys to police corporate fraud rather than focus on damages and to do so by considering individual actors, not just the company, when determining whether or not to file suit. Factors to consider include, “whether the person’s misconduct was serious, whether it is actionable, whether the admissible evidence will probably be sufficient to obtain and sustain a judgment, and whether pursuing the action reflects an important federal interest.” The guidance admits that these broader considerations may not, “in the short term,” provide a monetary return on enforcement investments. However, the DOJ believes this aggressive stance will ultimately “minimize corporate fraud, and, over the course of time, minimize losses to the public fisc through fraud.”For those within CPSC’s crosshairs during an investigation or judicial proceeding, this may mean (1) more pointed inquiries concerning individual actions related to corporate malfeasance; (2) increased civil penalties for individual wrongdoings; (3) personal liability—civil and criminal—for individuals linked to corporate cover-ups or other offenses; and (4) more concerted suits brought by DOJ and CPSC. Indeed, the CPSA already provides for civil and criminal penalties against individuals. Even before these DOJ guidelines were published, CPSC had brought actions to hold executive level employees individually responsible for their actions under the corporate officer doctrine.<a name="_ftnref6" href="#_ftn6">[6]</a>Finally, the DOJ guidance states that, generally, corporate resolution of a dispute will not provide protection, civilly or criminally, for individual actors. Furthermore, corporate cases should not be resolved absent a “clear plan to resolve related individual cases” and delays related to corporate resolutions should not holdup the government’s ability to pursue claims against individual actors. In fact, the DOJ guidance instructs that if no individuals are prosecuted at the conclusion of an investigation, “the reasons for [not bringing individual claims] must be memorialized and approved by the United States Attorney or Assistant Attorney General whose office handled the investigation, or their designees.”This rigid requirement illustrates the DOJ’s expectation that a typical corporate investigation would yield enough evidence to bring claims against individual corporate actors. Although at this stage it is unclear how these directives will play out, corporate actors should be aware of the potential implications. Corporate actors looking to avoid individual liability should take care to become knowledgeable about legal requirements for their positions and not expect the corporate umbrella to shield them from liability incurred by their own actions.    <a name="_ftn1" href="#_ftnref1">[1]</a> Although the measures discussed in the DOJ memorandum are not operative law, they are offered to “guide attorneys for the government in accordance with their statutory responsibilities and federal law.”<a name="_ftn2" href="#_ftnref2">[2]</a> See McKay, R. (Sept. 21, 2015) “Former peanut company CEO sentenced to 28 years for salmonella outbreak,” Reuters, available at https://www.reuters.com/article/2015/09/22/us-usa-georgia-salmonella-idUSKCN0RL24H20150922.<a name="_ftn3" href="#_ftnref3">[3]</a> See “CPSC Penalties to Increase Beyond ‘Cost of Doing Business,’” Morrison & Foerster Client Alert, March 3, 2015; and “CPSC Imposed Record-High Penalties in 2014,” Morrison & Foerster Client Alert, Nov. 11, 2014.<a name="_ftn4" href="#_ftnref4">[4]</a> See “Recall, Enforce, Repeat! CPSC and DOJ Team Up for Another Enforcement Action,” Morrison & Foerster Client Alert, June 22, 2015.<a name="_ftn5" href="#_ftnref5">[5]</a> The extent of the cooperation credit granted will still depend on traditional factors such as timeliness of cooperation, proactive nature of the corporation’s actions, and the diligence, thoroughness, and speed of the company’s internal investigation.<a name="_ftn6" href="#_ftnref6">[6]</a> See “CPSC Seeks to Hold Former CEO Responsible for Buckyballs® Recall,” Morrison & Foerster Client Alert, May 9, 2013.