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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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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The Future of Food: Exploring the World of Cell-Cultivated Cuisine

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During September 2024’s “Baby Safety Month,” the Consumer Product Safety Commission (CPSC) published its annual <a href="https://www.cpsc.gov/s3fs-public/Nursery-Products-Annual-Report-2024.pdf?VersionId=i14J7q9F0luaeMKs6a4_Sd2iSVmraon4" target="_blank">report</a> detailing injuries and deaths associated with nursery products among children under the age of five. CPSC emphasized that the statistics in the report related to incidents that involved a nursery product that was in use at the time of the incident—the nursery product involved did not necessarily cause the injury or death. The report notes:<ul><li>2023 saw over 60,000 emergency department-treated injuries among children under the age of five that were associated with nursery products. About 64 percent of those injuries were associated with highchairs, cribs, mattresses, infant carriers, and strollers.</li><li>Consistent with prior years, falls were the leading cause of all nursery product-associated injuries in 2023. Most of the injuries were treated by the emergency department and the infant was released. Only about 3 percent of injuries required hospitalization.</li><li>Between 2019 and 2021, CPSC received 523 reports of fatalities involving children under five years of age, an annual average of 174 fatalities a year. Cribs/mattresses, bassinets/cradles, playpens/play yards, inclined infant sleep products, and infant carriers were in use during 76 percent of these fatalities.</li></ul>CPSC did not observe “any statistically significant trend in the injury estimates” from 2023 compared to prior years dating back to 2019.After it published the report, CPSC urged parents and caregivers to put babies only in sleep products that are safe for sleeping and that meet federal standards with no soft bedding added. CPSC Chair Alexander Hoehn-Saric stated, “Babies aren’t little adults. They don’t need pillows and blankets to feel comfortable and safe when they sleep. The safest way for your baby to sleep is without blankets, pillows, or other items surrounding them. A firm, flat surface in a crib, bassinet, play yard or bedside sleeper with just a fitted sheet is all they need.”This report and related statistical analysis assisted in CPSC’s development and revisions to safety standards for nursery products, which has been a clear area of focus for CPSC in recent years. Since 2022, CPSC has issued new standards for crib mattresses and infant sleep products, and it banned crib bumpers and inclined infant sleepers. CPSC also revised standards for infant swings, carriages and strollers, highchairs, baby changing products, infant bathtubs, frame carriers, slings, bouncer seats, infant walkers, and bedside sleepers. CPSC has indicated that it intends to turn its focus to developing rules for infant support cushions, nursing pillows, and infant rockers.CPSC’s commentary on the report is consistent with the recent increase in its enforcement efforts and focus on infant products. But the report also provides important insights for industry members on the potential risks associated with their products. Manufacturers of nursery products should remain vigilant and proactive in their safety and risk mitigation practices to address potential risk exposure. We will continue to monitor and report developments as new regulations are proposed and passed.

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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 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

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Matt is an associate in the Litigation Department in MoFo’s San Diego office. Matt’s practice focuses on the product lifecycle, from early product development to litigation to end-of-life advisement. He counsels clients through complex consumer product safety regulatory landscapes and product recalls.











Matt Robinson

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Rachel Kaiser is an associate in the Litigation Department of Morrison Foerster’s San Diego office.

Rachel A. Kaiser

Rachel Kaiser

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CPSC Releases Annual Report on Deaths and Injuries Involving Nursery Products

The Consumer Product Safety Commission (CPSC) is seeking to mandate voluntary safety standards for infant/toddler rockers. In October 2023, CPSC published a notice of proposed rulemaking (NPR) to address associated risks. Products within the scope of the NPR include infant rockers marketed for infants up to six months, infant/toddler rockers marketed for children up to age two and a half, and “combination” products such as rockers/bouncers and swings/rockers.Read the full <a href="https://www.mofo.com/resources/insights/241008-cpsc-proposes-new-safety-rules-for-infant-rockers" target="_blank">client alert</a>.

CPSC Proposes New Safety Rules for Infant Rockers

In a disappointing, yet somewhat unsurprising, turn of events, the Consumer Product Safety Commission (CPSC) has refused to retract Commissioner Richard Trumka’s unilateral statements earlier this year encouraging retailers to stop selling weighted infant sleep products. On August 30, 2024, following public outcry over Commissioner Trumka’s statements, CPSC Commissioners Peter A. Feldman and Douglas Dziak <a href="https://www.cpsc.gov/About-CPSC/Commissioner/Douglas-Dziak-Peter-A-Feldman/Statement/Statement-of-Commissioners-Peter-A-Feldman-and-Douglas-Dziak-on-the-Retraction-of-Infant-Sleep-Products-Statements" target="_blank">published a statement</a> rejecting a request by Dreamland Baby, a weighted sleep sack company, that CPSC retract Commissioner Trumka’s statements.Notably, Commissioners Feldman and Dziak did not express support for Commissioner Trumka’s statements. Rather, they explained, “The relief sought by Dreamland Baby in this matter raises separate concerns, particularly with respect to the remedy, which requires a retraction ‘in a manner equivalent’ to the original method of dissemination.” They expressed concerns that retraction “in a manner equivalent” to the original method of dissemination could compel retractions on Commissioner Trumka’s letterhead and social media accounts. Commissioners Feldman and Dziak noted that they have “seen other independent agencies attempt censorship of the minority views of its commissioners and are aware of how these efforts contribute to concerns about the honesty and integrity of the senior leadership at those agencies.”As we previously <a href="https://www.mofo.com/resources/insights/240729-house-committee-on-small-business-opens-investigation" target="_blank">reported</a>, after Commissioner Trumka failed to gain support for a mandatory standard for weighted infant sleep products, he <a href="https://www.cpsc.gov/About-CPSC/Commissioner/Richard-Trumka/Statement/Beware-Weighted-Infant-Swaddles-and-Blankets-Are-Unsafe-for-Sleep-Retailers-Should-Consider-Stopping-Sales" target="_blank">issued a unilateral statement</a> on official CPSC letterhead titled “Beware: Weighted Infant Swaddles and Blankets are Unsafe for Sleep; Retailers Should Consider Stopping Sales.” He also posted on various social media channels and sent letters to multiple retailers of wearable blankets and swaddles, warning them to stop selling these products immediately.Following Commissioner Trumka’s actions, manufacturers of weighted infant swaddles and blankets stated that their sales dropped drastically. Major retailers like Nordstrom, Amazon, and Maisonette stopped selling these products altogether.In May 2024, the New Civil Liberties Alliance (NCLA) <a href="/topics/new-civil-liberties-alliance-alleges-cpsc-and-commissioner-trumka-exceeded-authority-and-plans-to-file-suit" target="_self">threatened to sue</a> CPSC and Commissioner Trumka for his disparaging statements. Though no lawsuit has been filed to date, NCLA sent CPSC a <a href="https://nclalegal.org/press_release/ncla-demands-cpsc-and-comr-trumka-rescind-false-statements-disparaging-weighted-sleep-sacks/" target="_blank">formal letter</a> in July 2024, asking CPSC to retract Commissioner Trumka’s statements. NCLA explained:CPSC is supposed to study safety questions and obtain supporting data before acting. Instead, without taking such mandatory steps, it told Americans not to use infant weighted sleep products. Worse yet, Commissioner Trumka issued disparaging statements to the public and to retailers creating the false impression that the Commission has made a determination regarding weighted infant sleep products’ safety when it has not. In fact, the Commission admitted last fall that it did not have the data necessary to regulate these products. CPSC has no power to act, unless it follows the processes prescribed by the Consumer Product Safety Act, which it did not do here. The public interest is not served when government agencies and officers ignore the law.NCLA has not yet responded to Commissioners Feldman and Dziak’s denial of NCLA’s request. If NCLA files suit and the case progresses, industry members hope it will clarify the scope of individual CPSC commissioners’ authority. We will continue to monitor the case and provide ongoing updates.

CPSC Commissioners Abstain from Retracting Infant Sleep Product Statements

On May 16, 2024, the United States Consumer Product Safety Commission (CPSC) took an unconventional action, unilaterally <a href="https://www.cpsc.gov/Recalls/2024/CHZHVAN-Combination-Smoke-and-Carbon-Monoxide-Detectors-Recalled-Due-to-Failure-to-Alert-to-Fire-Sold-Exclusively-on-Amazon-com-by-Haikouhuidishangmaoyouxiangongsi" target="_blank">issuing a recall announcement</a> urging consumers to dispose of CHZHVAN Combination Smoke and Carbon Monoxide Detectors after reports that the detectors failed to alarm in the presence of smoke. The recall press release notes that the seller of the detectors “has not responded to the CPSC or consumers and has been uncooperative in the implementation of the recall.”Traditionally, consumer product recalls are voluntarily conducted by the product manufacturer or retailer in conjunction with CPSC. If a company is unwilling to conduct a voluntary recall, CPSC can use various enforcement mechanisms to pressure the company to agree to recall the product.One common enforcement mechanism is CPSC’s authority under Section 6(b) of the Consumer Product Safety Act to issue a unilateral press release, warning consumers of a potential hazard and/or advising consumers to stop using a product. While unilateral press releases carry no direct penalties themselves, they can—and frequently do—result in various adverse consequences for the named company. Most evidently, unilateral press releases can trigger negative press attention and calls from industry groups and consumers for the company to recall the product, which often will lead to the company ultimately conducting a recall.But CPSC’s authority does not include the ability to unilaterally issue a mandatory recall. CPSC can file an administrative complaint in a U.S. District Court requesting the court find a product to be an “imminently hazardous consumer product” (one that “presents imminent and unreasonable risk of death, serious illness, or severe personal injury”) and seeking temporary or permanent relief to protect the public. This relief may come in the form of a public notice or product recall. 15 U.S.C. § 2061. CPSC has only turned to filing administrative complaints in extreme situations, as the entire process to obtain a court order can be lengthy. In the last 10 years, CPSC has only filed <a href="https://www.cpsc.gov/Recalls/Recall-Lawsuits-Adjudicative-Proceedings" target="_blank">four administrative complaints</a>.United States v. Zen Magnets, LLC, 104 F. Supp. 3d 1277, 1284 (D. Colo. 2015) illustrates both the appeal and drawbacks of this authority for CPSC. There, the court granted CPSC’s request for a preliminary injunction, enjoining future sales of a product it found to present a substantial product hazard, but denied CPSC’s request that the court order the company to recall the products it had already sold. Id. at n. 5. The court explained that no statutory provision cited by CPSC “confers authority to order an individual or entity to recall” products found to present a substantial product hazard that have already been distributed in commerce. Id. CPSC first filed its administrative complaint in August 2012 and did not receive an order until March of 2016.Here, CPSC went beyond issuing a Section 6(b) unilateral press release by issuing a warning and stop‑use notice for the combination smoke and carbon monoxide detectors in a product recall announcement. Importantly, CPSC did this without filing an administrative complaint.CPSC appears to have taken this approach once in the past. A similar <a href="https://www.cpsc.gov/Recalls/2022/Mohnark-Pharmaceuticals-Recalls-Lidocaine-Topical-Anesthetic-Cream-Due-to-Failure-to-Meet-Child-Resistant-Packaging-Requirement-Risk-of-Poisoning-Recall-Alert" target="_blank">recall press release</a> issued on June 30, 2022, warning consumers to dispose of a Lidocaine 4% Topical Anesthetic Cream that failed to meet child-resistant packaging requirements, also notes that the seller “has been uncooperative in the implementation of the recall.”These two apparent unilateral recall press releases demonstrate CPSC’s continued aggressive enforcement efforts. If a manufacturer or retailer is resistant to CPSC, CPSC has sought to expand its traditional enforcement mechanisms in order to communicate what it believes are substantial product hazards to consumers.

CPSC Issues Unilateral Recall Press Release Involving “Uncooperative” Retailer of Smoke Detector

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CPSC Issues Unilateral Recall Press Release Involving “Uncooperative” Retailer of Smoke Detector

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On May 16, 2024, the United States Consumer Product Safety Commission (CPSC) took an unconventional action, unilaterally issuing a recall announcement urging consumers to dispose of CHZHVAN Combination Smoke and Carbon Monoxide Detectors after reports that the detectors failed to alarm in the presence of smoke. 

The Consumer Product Safety Commission (CPSC) launched a new <a href="https://www.cpsc.gov/Business-Product-Safety-Complaint" target="_blank">online Business Product Safety Complaint portal</a> through which a business can anonymously alert CPSC of competitor products in the marketplace that businesses believe do not comply with mandatory safety standards or are otherwise unsafe for consumers. While CPSC has always allowed consumers to report similar concerns regarding potential unsafe products online, the new Business Product Safety Complaint portal is directed specifically at the business community. CPSC hopes that businesses will embrace and make regular use of the portal, allowing CPSC staff to be alerted to potential product safety hazards more frequently and sooner.This portal was spearheaded by CPSC Commissioners Peter Feldman and Douglas Dziak, who released a <a href="https://www.cpsc.gov/About-CPSC/Commissioner/Peter-A-Feldman/Statement/Statement-of-Commissioners-Peter-A-Feldman-and-Douglas-Dziak-New-Business-Complaint-Portal-Will-Leverage-Private-Sector-Knowledge-to-Improve-Safety" target="_blank">statement in support of the portal</a>. Commissioners Feldman and Dziak noted that the portal is meant to harness “market forces and private sector knowledge to improve consumer safety. . . . This new portal will provide firms, importers, and other market participants an opportunity to alert the Commission to dangerous or violative products more easily.”According to Feldman and Dziak, the idea behind the portal originated in 2022, based largely on feedback from stakeholders. As the Commissioners explained, “we heard the frustration of firms that are forced to compete against unscrupulous market participants who seek unfair advantage by skirting mandatory safety requirements. Businesses often find out about unsafe products before the Commission, and they have every incentive to alert regulators about competitor products. Until now, they have not had a convenient mechanism to do so.”This may be a welcome tool for compliant companies that feel like they are competing on an unlevel playing field with competitors that are skirting mandatory safety standards. But some have also expressed skepticism, thinking some businesses may try to take advantage of the anonymity of the tool by harassing or badgering its competitors with false or misleading reports.No matter how businesses ultimately use the tool, this is yet another example of CPSC’s continued increase of its enforcement efforts.

CPSC Launches New Business Product Safety Complaint Portal

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CPSC Launches New Business Product Safety Complaint Portal

Consumer Product Safety Enforcement To Heat Up Under Biden Administration

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The Consumer Product Safety Commission (CPSC) launched a new online Business Product Safety Complaint portal through which a business can anonymously alert CPSC of competitor products in the marketplace that businesses believe do not comply with mandatory safety standards or are otherwise unsafe for consumers.

In early May 2024, the New Civil Liberties Alliance (NCLA) <a href="https://nclalegal.org/wp-content/uploads/2024/05/2024.05.09-Litigation-Hold-Letter-to-CPSC-re-Dreamland-Baby.pdf" target="_blank">notified</a> the U.S. Consumer Product Safety Commission (CPSC) that it intended to file suit against CPSC and CPSC Commissioner Richard Trumka for allegedly violating the constitutional and statutory rights of its client, Dreamland Baby Co. (“Dreamland”), by making disparaging statements about Dreamland’s products to the general public and retailers.Dreamland manufactures baby and toddler sleep products, including weighted sleep sacks. According to Dreamland, the sleep sacks are designed to help babies fall asleep faster and stay asleep longer by evenly distributing weight across their bodies. Dreamland has reportedly been working with the American Society for Testing and Materials and other industry members to develop a voluntary safety standard for wearable blankets and swaddles that would cover Dreamland’s products.Commissioner Trumka sought to create a mandatory standard to address possible risks associated with weighted infant sleep products. He wanted CPSC to update all safe sleep messaging and guidance to incorporate recent advice from the Centers for Disease Control and Prevention and National Institutes of Health on such products. The CPSC has never enacted a federal ban on weighted sleep products, and it rejected Commissioner Trumka’s proposal in a 3-1 vote in November 2023. In voting against Commissioner Trumka’s amendment, CPSC Chairman Alexander Hoehn-Saric explained that he did not believe CPSC staff had yet conducted the necessary research to be in a position to draft a proposed rule in 2024.On April 15, 2024, Commissioner Trumka issued a statement titled “Beware: Weighted Infant Swaddles and Blankets are Unsafe for Sleep; Retailers Should Consider Stopping Sales,” and sent letters to multiple retailers of wearable blankets and swaddles. NCLA contends these statements disparaged wearable weighted blankets and swaddles and blamed such products for causing infant deaths. According to NCLA, several retailers stopped selling Dreamland’s products following Commissioner Trumka’s statements and letters, which Dreamland says has impacted its ability to continue operating. Dreamland alleges that major retailers stopped selling Dreamland’s products within days of receiving Commissioner Trumka’s letter.NCLA announced its plans to sue CPSC on May 9, 2024, in a letter alleging that Commissioner Trumka “circumvented the CPSA’s carefully crafted processes by effectively orchestrating a stop sale of Dreamland’s lawful products.” In a <a href="https://nclalegal.org/press_release/ncla-plans-to-sue-cpsc-over-commr-trumkas-illegal-efforts-to-stop-sales-of-weighted-sleep-sacks/" target="_blank">press release</a> dated May 9, 2024, NCLA added that Commissioner Trumka’s actions “disregard the Consumer Product Safety Act’s required rulemaking processes, preference for voluntary standards, and show impermissible bias against Dreamland.”Dreamland, along with other manufacturers of weighted baby products, have defended their safety to consumers. Manufacturers like Nested Bean, another company that creates infant weighted sleepwear, have assured consumers that there is no investigation related to the company’s products, and there have been no fatalities linked to the products in question.As of July 10, 2024, NCLA has yet to file suit against CPSC on behalf of Dreamland. As CPSC pushes to try to leverage the tools and authority at its disposal to continue its aggressive enforcement measures, this case, if litigated, will provide important clarification for consumer product manufacturers and retailers about the scope of CPSC’s authority. We will continue to monitor the case and provide ongoing updates.

In early May 2024, the New Civil Liberties Alliance (NCLA) notified the U.S. Consumer Product Safety Commission (CPSC) that it intended to file suit against CPSC and CPSC Commissioner Richard Trumka for allegedly violating the constitutional and statutory rights of its client, Dreamland Baby Co. (“Dreamland”), by making disparaging statements about Dreamland’s products to the general public and retailers.

New Civil Liberties Alliance Alleges CPSC and Commissioner Trumka Exceeded Authority and Plans to File Suit

Lithium-ion batteries are rechargeable batteries, commonly found in devices used every day, including cell phones, e-cigarettes, and laptops. Lithium-ion batteries are also found in electric vehicles, e-scooters, and other micro-mobility vehicles.The National Fire Protection Association (NFPA), a nonprofit organization that seeks to eliminate injuries and deaths caused by fire hazards, heavily emphasized lithium-ion battery safety at its 2024 annual conference, featuring educational sessions and workshops focused on the fire risks associated with lithium-ion batteries. <a href="https://www.nfpa.org/Education%20and%20Research/Home%20Fire%20Safety/Lithium-Ion%20Batteries" target="_blank">According to the NFPA</a>, while lithium-ion batteries “provide an effective and efficient source of power, the likelihood of them overheating, catching on fire, and even leading to explosions increases when they are damaged or improperly used, charged, or stored.”Specific emphasis was placed on lithium-ion batteries found in e-bikes and other micro-mobility devices at the NFPA conference. According to the NFPA, the New York Fire Department reported more than 130 fires started by e-bikes or e-scooters—up from just 13 in 2019—which led to five deaths.Lithium-ion batteries, including the ones found in most electric vehicles, are susceptible to a reaction called thermal runaway, a process in which the lithium-ion cell heats up uncontrollably in a matter of seconds, which can cause the battery to catch fire or explode. These potential issues presented by damaged or defective lithium-ion batteries create significant exposure to regulatory and litigation risk for manufacturers and retailers of consumer products containing lithium-ion batteries.The Consumer Product and Safety Commissions (CPSC) has also increased its focus on and scrutiny of lithium-ion battery safety in e-bikes and other micro-mobility devices. In its <a href="https://www.mofo.com/resources/insights/240319-cpsc-at-icphso-2024-enforcement-priorities" target="_self">2024 Operating Plan</a>, CPSC noted its plan to propose mandatory safety standards for lithium-ion batteries in micro-mobility products and enforce existing regulations.Lawmakers have also taken steps to regulate the possible risks posed by lithium-ion batteries in micro-mobility devices. For example, the Chicago City Council committee has <a href="https://chicago.suntimes.com/city-hall/2024/06/05/electric-bikes-scooters-lithium-batteries-fire-hazard-city-council-regulations" target="_blank">called for an ordinance</a> that would permit fines for distributing devices with lithium-ion batteries that do not meet safety certifications. Rhode Island <a href="https://www.wpri.com/news/politics/new-legislation-would-allocate-funding-for-lithium-ion-battery-fire-response-training/#:~:text=COVENTRY%2C%20R.I.%20(WPRI)%20%E2%80%94,the%20Rhode%20Island%20Fire%20Academy.">introduced a bill</a> that would increase funding to the state’s fire academy for specialized lithium-ion battery response training. And New York <a href="https://www.nyc.gov/site/dca/news/044-23/city-reminds-retailers-consumers-only-purchase-certified-lithium-ion-batteries-mobility#:~:text=Following%20a%20brief%20period%20of%20education%2C%20businesses%20that,use%20unless%20those%20devices%20are%20resold%20or%20rented." target="_blank">recently passed a law</a> that bans the sale, rental, or distribution of e-mobility devices containing batteries that have not been certified by a nationally recognized testing lab.It seems inevitable that federal, state, and local regulations will continue to tighten around the use of lithium-ion batteries in consumer products. Manufacturers should prepare for stricter regulations in the near future by monitoring regulatory updates and ensuring compliance with applicable existing voluntary standards. We will continue to monitor new regulations and provide ongoing updates.

Lithium-Ion Battery Safety Heavily Featured at 2024 NFPA Conference