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

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Partner

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

Adam Hunt

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

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

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

Alexandra Barlow

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

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Senior Counsel

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

Penelope A. Preovolos

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

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Associate

Zak Newman

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

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Mitchell Hokanson

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FDA Seeks to Phase Out Synthetic Color Additives

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

ICPHSO 2025: CPSC at ICPHSO

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

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

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This second installment of our <a href="https://www.mofo.com/resources/insights/240319-cpsc-at-icphso-2024-enforcement-priorities" target="_self">series</a> highlights CPSC’s Office of Compliance Activity and continued aggressive enforcement efforts.Multiple presenters emphasized CPSC’s continued aggressive enforcement. Commenters frequently repeated the statistic that CPSC obtained over $52 million in civil penalties in its fiscal year 2023. Further, since January 2021, CPSC has settled 11 civil penalty investigations, for a combined total of over $100 million. Jana Fong-Swamidoss, Chief of Staff to CPSC Chair Alexander Hoehn-Saric, explained that this trend is consistent with CPSC’s view that it is an enforcement agency and not just a regulator.Read the <a href="https://www.mofo.com/resources/insights/240320-cpsc-at-icphso-office-of-compliance-activity" target="_self">full client alert</a>.

CPSC at ICPHSO: Office of Compliance Activity

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

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Co-Chair, Litigation Department

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

Erin M. Bosman

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

Erin Bosman

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

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

Julie Park

Julie Park | Product Liability Lawyer

Julie 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

CPSC at ICPHSO: Office of Compliance Activity

This second installment of our series highlights CPSC’s Office of Compliance Activity and continued aggressive enforcement efforts.

The Consumer Product Safety Commission (CPSC) was well represented at the International Consumer Product Health and Safety Organization’s annual symposium in Orlando, which took place in February. Agency representatives provided a number of insights to consumer product safety stakeholders. This week, we will be providing an overview of topics covered by CPSC at ICPHSO, starting with CPSC’s 2024 priorities.Read the <a href="https://www.mofo.com/resources/insights/240319-cpsc-at-icphso-2024-enforcement-priorities" target="_blank">full client alert</a>.

CPSC at ICPHSO: 2024 Enforcement Priorities

The Consumer Product Safety Commission (CPSC) was well represented at the International Consumer Product Health and Safety Organization’s annual symposium in Orlando, which took place in February. 

CPSC at ICPHSO: 2024 Enforcement Priorities

On March 7, 2024, the U.S. Senate confirmed Doug Dziak as a Commissioner of the Consumer Product Safety Commission (CPSC), filling the final Commissioner seat that has remained vacant since Commissioner Dana Baiocco’s resignation on October 5, 2022. Even with this confirmation of Commissioner Dziak—a Republican—the Democratic Commissioners retain a 3-2 majority on the CPSC. President Biden was obligated to fill the seat with a Republican, as no more than three Commissioners may belong to the same party, and Democrats already held a 3-1 majority when he nominated Dziak in March 2023.Commissioner Dziak is no stranger to the CPSC and the consumer product regulatory landscape. He has served as Chief Counsel to Commissioner Peter Feldman since 2021 and, prior to his time at the CPSC, he held senior staff roles with multiple senators. Commissioner Dziak’s term will end later this year on October 27, 2024, but because he is filling the remainder of Commissioner Baiocco’s term, he may continue to serve as a “hold-over” Commissioner for a year until October 27, 2025. He may also continue to serve if he is reappointed after his term expires.Given that the Democratic majority at the Commission remains intact, we expect the CPSC to continue its aggressive enforcement activity and push Congress for more enforcement authority. We expect to see this trend continue absent an administration change in the upcoming election.Our Product Life Cycle Group will continue to provide updates on CPSC compliance and enforcement trends.

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Senate Confirms Doug Dziak as Fifth CPSC Commissioner

Consumer Product Safety Enforcement To Heat Up Under Biden Administration

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On March 7, 2024, the U.S. Senate confirmed Doug Dziak as a Commissioner of the Consumer Product Safety Commission (CPSC), filling the final Commissioner seat that has remained vacant since Commissioner Dana Baiocco’s resignation on October 5, 2022.

Senate Confirms Doug Dziak as Fifth CPSC Commissioner

On January 25, 2024, Representative Jan Schakowsky (D-IL) introduced the Consumer Advocacy and Protection (CAP) Act, which would amend the Consumer Product Safety Act (CPSA) to increase the maximum civil penalty for a single violation of the CPSA from $100,000 to $250,000 and remove the $17,150,000 inflation-adjusted maximum cap for a series of violations. The legislation would also allow the Consumer Product Safety Commission (CPSC) to adjust the $250,000 per violation civil penalty for inflation each year, rather than every five years as allowed under the current CPSA. If enacted, the CAP Act would significantly impact how consumer product companies approach compliance with the CPSA.This bill follows CPSC’s recent increased and aggressive enforcement efforts. In recent years, CPSC has heightened the pressure on consumer product companies by using the different enforcement mechanisms in its toolbox—the number of recalls, unilateral press releases, and civil penalty amounts have all significantly increased in the last three years. Commissioner Richard Trumka summed up CPSC’s new attitude in a <a href="https://www.cpsc.gov/About-CPSC/Commissioner/Richard-Trumka/Statement/CPSC-Secures-158-Million-Penalty-Against-Generac-for-Failing-to-Timely-Disclose-Amputation-Hazard-Posed-by-Portable-Generators" target="_blank">May 5, 2023 statement</a> in support of a civil penalty settlement, explaining, “This Commission will use every tool at its disposal to stop bad actors from harming consumers, including maximum civil penalties and, where warranted, criminal referrals.”At the same time, CPSC Commissioners and consumer advocacy groups have been calling on Congress to increase the civil penalty maximum and provide CPSC with additional enforcement tools. For example, since Commissioner Mary Boyle was confirmed in June 2022, she has repeatedly urged Congress “to significantly increase CPSC’s penalty authority.”[1] It is her <a href="https://www.cpsc.gov/About-CPSC/Commissioner/Mary-T-Boyle/Statement/Commissioner-Mary-T-Boyle-Statement-on-HSNs-Agreement-to-Pay-160-Million-Civil-Penalty" target="_blank">position</a> that businesses “may consider the current penalty regime merely a cost of doing business” and increased maximum penalties are needed to “penalize bad actors and to incentivize companies of all sizes to make consumer safety a top priority.” Consumer product safety advocacy groups like Kids in Danger, Consumer Federation of America, and the <a href="https://pirg.org/edfund/articles/former-home-shopping-network-faces-penalty-for-not-reporting-injuries-from-defective-steamers/" target="_blank">U.S. Public Interest Research Group</a>, which have all endorsed the CAP Act, have echoed Commissioner Boyle’s sentiments.Representative Schakowsky, one of the CAP Act’s co-sponsors, frequently spearheads consumer product safety legislation and measures in Congress. In 2021, she introduced the Sunshine in Product Safety Act, which would broaden one of CPSC’s enforcement mechanisms by repealing Section 6(b) of the CPSA. Section 6(b) requires CPSC to provide companies with an opportunity to comment before CPSC makes public statements about them. This includes unilateral press releases that CPSC intends to publish. Companies have no authority to block a unilateral press release unless it contains materially inaccurate information, but Representative Schakowsky and other critics claim it delays and restricts CPSC’s authority to promptly and effectively warn the public about product safety hazards. She reintroduced the bill in 2023 but has failed to garner the necessary support to push it through Congress.If the failed Sunshine in Product Safety Act is any sign, then the CAP Act faces an uphill battle in Congress. But even if it is not enacted, the CAP Act reflects CPSC’s demonstrated commitment to increasing enforcement of reporting obligations, highlighting the importance of understanding and complying with consumer product safety laws and regulations. Consumer product companies need to have a plan in place to evaluate and respond to information that may trigger their reporting obligations. They must also ensure they are taking a thoughtful and measured approach to compliance. Morrison Foerster’s Product Life Cycle group helps companies navigate the evolving enforcement landscape to find business-friendly compliance solutions.[1] Press Release, <a href="https://www.cpsc.gov/About-CPSC/Commissioner/Mary-T-Boyle/Statement/Commissioner-Mary-T-Boyle-Statement-on-HSNs-Agreement-to-Pay-160-Million-Civil-Penalty">Commissioner Mary T. Boyle Statement on HSN’s Agreement to Pay $16.0 Million Civil Penalty</a> (Nov. 8, 2023). See also Press Release, <a href="https://www.cpsc.gov/About-CPSC/Commissioner/Mary-T-Boyle/Statement/Commissioner-Mary-T-Boyle-Statement-on-BJ%E2%80%99s-Agreement-to-Pay-90-Million-Civil-Penalty" target="_blank">Commissioner Mary T. Boyle Statement on BJ’s Agreement to Pay $9.0 Million Civil Penalty</a> (Sept. 29, 2023) (“To penalize bad actors and to incentivize companies of all sizes to make consumer safety a top priority, I am urging Congress to significantly increase CPSC’s penalty authority.”); Press Release, <a href="https://www.cpsc.gov/About-CPSC/Commissioner/Mary-T-Boyle/Statement/Commissioner-Mary-T-Boyle-Statement-on-Whirlpool-Corporation-Agreement-to-Pay-115-Million-Civil-Penalty" target="_blank">Commissioner Mary T. Boyle Statement on Whirlpool Corporation Agreement to Pay $11.5 Million Civil Penalty</a> (Aug. 24, 2023).

Proposed Bill Seeks to Remove Cap on Civil Penalties Issued by CPSC

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Proposed Bill Seeks to Remove Cap on Civil Penalties Issued by CPSC

Privacy Litigation 2020 Year in Review: Data Breach Litigation

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On January 25, 2024, Representative Jan Schakowsky (D-IL) introduced the Consumer Advocacy and Protection (CAP) Act, which would amend the Consumer Product Safety Act (CPSA) to increase the maximum civil penalty for a single violation of the CPSA from $100,000 to $250,000 and remove the $17,150,000 inflation-adjusted maximum cap for a series of violations.

Button cell and coin battery manufacturers and importers need to know about new requirements that come into effect next year. On September 21, 2023, the Consumer Product Safety Commission (CPSC), pursuant to its authority under Reese’s Law, published two rules imposing additional requirements for button cell and coin batteries and consumer products containing button cell and coin batteries. See <a href="https://www.federalregister.gov/documents/2023/09/21/2023-20334/safety-standard-for-button-cell-or-coin-batteries-and-consumer-products-containing-such-batteries" target="_blank">88 FR 65296</a>; <a href="https://www.federalregister.gov/documents/2023/09/21/2023-20333/safety-standard-for-button-cell-or-coin-batteries-and-consumer-products-containing-such-batteries">88 FR 65274</a>. Reese’s Law, 15 U.S.C. § 2056e, signed into law on August 16, 2022, was passed to protect children six years old and younger from button cell and coin battery ingestion hazards.Together, Reese’s Law and the two new rules from CPSC impose a broad set of construction, performance, packaging, and labeling requirements on battery manufacturers and importers.<table dir="ltr"><tbody dir="ltr"><tr dir="ltr"><td dir="ltr">Source</td><td dir="ltr">Requirements</td><td dir="ltr">Effective Date</td></tr><tr dir="ltr"><td dir="ltr"><a href="https://www.federalregister.gov/documents/2023/09/21/2023-20333/safety-standard-for-button-cell-or-coin-batteries-and-consumer-products-containing-such-batteries" dir="ltr" target="_blank">88 FR 65274</a></td><td dir="ltr">Construction Requirements<ul><li dir="ltr">Products with removable/replaceable batteries must restrict access to the battery compartment through one of the following methods:</li><ul><li dir="ltr">The compartment cannot be opened without a tool</li><li dir="ltr">The compartment cannot be opened without at least two independent and simultaneous hand movements</li></ul><li dir="ltr">Products with non-replaceable button cell or coin batteries must restrict access to the battery compartment</li></ul>Performance Requirements<ul><li dir="ltr">Products with button or coin cell batteries must pass various performance tests set forth in ANSI/UL 4200, such as a drop test, impact test, crush test, and torque test.</li></ul>Labeling Requirements<ul><li dir="ltr">Packaging for products with button cell or coin batteries must include a warning</li><li dir="ltr">Products with button cell or coin batteries must be marked with a warning</li></ul></td><td dir="ltr">Products manufactured or imported after March 19, 2024</td></tr><tr dir="ltr"><td dir="ltr"><a href="https://www.federalregister.gov/documents/2023/09/21/2023-20334/safety-standard-for-button-cell-or-coin-batteries-and-consumer-products-containing-such-batteries" dir="ltr" target="_blank">88 FR 65296</a></td><td dir="ltr">Labeling RequirementsThe packaging of button cell or coin batteries, including those packaged separately with a consumer product, must comply with various warning label requirements.</td><td dir="ltr">Products manufactured or imported after September 21, 2024</td></tr><tr dir="ltr"><td dir="ltr">Section 3 of Reese’s Law</td><td dir="ltr">Packaging RequirementsButton cell or coin batteries, or consumer products containing a button cell or coin battery, must be packaged in accordance with child-resistant packaging requirements in 16 C.F.R. 1700.15.</td><td dir="ltr">Products manufactured or imported after February 12, 2023</td></tr></tbody></table>I. Safety Standards for Button Cell and Coin Batteries (Direct Final Rule)CPSC issued a direct final rule<a href="#_ftn1" target="_self">[1]</a> adopting ANSI/UL 4200A as a mandatory safety standard, which includes construction, performance, and labeling requirements. See <a href="https://www.federalregister.gov/documents/2023/09/21/2023-20333/safety-standard-for-button-cell-or-coin-batteries-and-consumer-products-containing-such-batteries" target="_blank" dir="ltr">88 FR 65274</a> . The rule requires products manufactured or imported after October 23, 2023, to comply with these requirements. But CPSC announced that it will exercise its enforcement discretion by not enforcing these requirements until March 19, 2024.A. Construction RequirementsANSI/UL 4200A’s construction requirements distinguish between products with removable/replaceable button cell or coin batteries and products with non-replaceable button cell or coin batteries.Products with removable/replaceable batteries: To prevent children from accessing the battery, battery compartments in products with removable/replaceable button cell or coin batteries shall be secured by one of the following methods:<ul><li dir="ltr">The battery compartment cannot be opened without use of a tool; or</li><li dir="ltr">The battery compartment cannot be opened without at least two independent and simultaneous hand movements.</li></ul>Products with non-replaceable batteries: Products with non-replaceable button cell or coin batteries must effectively prevent removal of the battery by a child or the user through, for instance, the use of soldering or fasteners.B. Performance RequirementsANSI/UL 4200A also sets forth performance requirements to ensure products containing button cell or coin batteries “do not present a risk of unintentional access by children.” These provisions require products to pass several tests, including drop, impact, crush, and torque tests, among others.C. Labeling RequirementsANSI/UL 4200A section 7 requires that the principal display panel of packaging for consumer products containing button cell or coin batteries include a warning, such as the warning below:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt1df89912ca28efaa/65760b07302a1676ae469f58/231210-blog-image-1.png?format=auto&amp;quality=60" alt="blog image"/></div>Additionally, consumer products containing button cell or coin batteries must also be marked with the following warning:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt8ab3341bc1e2f918/6576119f67bbf56461989cad/231210-blog-image-3.png?format=auto&amp;quality=60" alt="blog image"/></div>If the above warning does not fit given the size of the product, the product must include the following warning symbol, which is internationally recognized to mean: “Warning: contains coin battery”:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt45de6a2014197f9a/65760b2f7631d173da80033e/231210-blog-image-3.png?format=auto&amp;quality=60" alt="blog image"/></div>II. Additional Labeling Requirements for Button Cell and Coin Batteries (Final Rule)CPSC also promulgated a final rule to establish warning label requirements for the packaging of button cell or coin batteries, including those packaged separately with a consumer product. See <a href="https://www.federalregister.gov/documents/2023/09/21/2023-20334/safety-standard-for-button-cell-or-coin-batteries-and-consumer-products-containing-such-batteries" target="_blank" dir="ltr">88 FR 65296</a>. The final rule requires that the principal display panel include a warning label, such as the warning below:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/bltaf698cad8c2f5e92/65760b3f99c5124d40d983ce/231210-blog-image-4.png?format=auto&amp;quality=60" alt="blog image"/></div>Warning statements must be clearly visible, prominent, legible, and permanently marked, among other requirements.Additionally, the following statements must be placed on the principal or secondary display panels:<ol><li dir="ltr">Keep in original package until ready to use.</li><li dir="ltr">Immediately dispose of used batteries and keep away from children. Do NOT dispose of batteries in household trash.</li></ol>These requirements apply to products manufactured or imported after September 21, 2024.III. Packaging Requirements for Button Cell or Coin BatteriesSection 3 of Reese’s Law requires any button cell or coin battery, or consumer product containing a button cell or coin battery, that is sold, distributed, or imported into the U.S. to be packaged in accordance with child-resistant packaging requirements in 16 C.F.R. 1700.15. These requirements became effective February 12, 2023.IV. CertificationManufacturers of products subject to these requirements must certify compliance in a Children’s Product Certificate or a General Certificate of Compliance. Third-party testing and certification of children’s products subject to Reese’s Law are not required until December 20, 2023.V. Consult Legal CounselReese’s Law adds a number of safety-related requirements for many battery-containing consumer products. Companies should review their practices and consult with legal counsel to evaluate compliance.<a href="#_ftnref1" target="_self">[1]</a> A direct final rule is a rule issued without a preceding proposed rule and notice/comment period. Instead, the direct final rule goes into effect on a certain date, unless the rule receives substantive adverse comments prior to going into effect. In contrast, a final rule is issued following a proposed rule and notice/comment period.

CPSC Imposes New Requirements for Button Cell and Coin Batteries Pursuant to Reese’s Law

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Cedar Hobbs is an associate in MoFo’s Complex Litigation + Advisement Group in the San Diego office. His practice focuses on complex civil litigation and environmental law and regulation.

Cedar Hobbs