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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This month, California chaptered two new bills, <a href="https://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bill_id=202320240AB2515" target="_blank">AB 2515</a> and <a href="https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202320240AB347&showamends=false" target="_blank">AB 347</a>, regulating per- and polyfluoroalkyl substances (PFAS) in menstrual products and juvenile products, textile articles, and food packaging, respectively. The California laws are just the latest in a rising tide of PFAS legislation restricting the chemicals in consumer products. Nearly half of U.S. states have recently enacted or are considering such laws. Following an initial wave of state-level legislative efforts targeting the use of PFAS in firefighting foam, these current initiatives have expanded the reach to consumer product categories, such as food packaging, cookware, cosmetics, children’s products, textiles, menstrual products, and carpets and rugs.Manufacturers, distributors, and retailers across industries are bracing to comply with the rapidly developing patchwork of laws, including by reformulating products and packaging or moving away from PFAS altogether.[1]The following provides a look at the current landscape of laws across the U.S. restricting PFAS in consumer products.[2]Consumer Product State Laws – Enacted and Proposed<div data-reactroot=""><img class="rich-text-embed-image" alt="Consumer Product state law map" src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt66641550d1927ae8/67227d4b9fad556b64e1eb1e/consumer-product-state-law.png?format=auto&amp;quality=60"/></div><a href="https://www.maine.gov/dep/spills/topics/pfas/PFAS-products/" target="_blank">Maine</a> and <a href="https://www.pca.state.mn.us/get-engaged/pfas-in-products" target="_blank">Minnesota</a> have been the most aggressive. Both states have passed laws that will prohibit the sale of all products containing intentionally added PFAS.[3] A growing number of states may soon follow suit. The California, Illinois, New York, Vermont, and Wisconsin legislatures have each also proposed to ban the use of PFAS in all products.Other states are taking a more piecemeal approach, addressing the use of PFAS category-by-category. For instance, prior to proposing a ban on PFAS in all products, California enacted legislation that prohibits—or will eventually prohibit—the use of PFAS in apparel, carpets and rugs, food packaging, children’s products, and personal care products. As reflected in the list below of products covered by enacted laws, several other states have done the same, and many more such bills are pending. Other product-category-specific legislation that has been proposed includes <a href="https://legiscan.com/CA/text/AB2761/id/2930517" target="_blank">California’s AB 2761</a>, prohibiting the use of PFAS in plastic packaging; <a href="https://ilga.gov/legislation/fulltext.asp?DocName=&SessionId=112&GA=103&DocTypeId=HB&DocNum=1282&GAID=17&LegID=143392&SpecSess=&Session=" target="_blank">Illinois’s HB 1282</a>, prohibiting the use of certain PFAS chemicals in cosmetic products; and <a href="https://www.njleg.state.nj.us/bill-search/2024/A1421" target="_blank">New Jersey’s A1421</a>, restricting PFAS in cosmetic products, carpet or fabric treatments, and food packaging.<table><tbody><tr><td>State</td><td>Products Regulated by Enacted Legislation</td></tr><tr><td>California</td><td>Food packaging, cookware, juvenile products, cosmetics, menstrual products, textiles</td></tr><tr><td>Colorado</td><td>Outdoor apparel or severe wet conditions, cleaning products, cookware, dental floss, menstrual products, ski wax, textile articles, food equipment for use in commercial settings</td></tr><tr><td>Connecticut</td><td>Apparel, carpets/rugs, cleaning products, cookware, cosmetics, dental floss, fabric treatments, children’s products, menstrual products, textile furnishings, ski wax, upholstered furniture</td></tr><tr><td>Hawaii</td><td>Food packaging</td></tr><tr><td>Maine</td><td>All products (by 2032); restrictions on carpets/rugs, fabric treatments, cleaning products, cookware, cosmetics, dental floss, juvenile products, menstruation products, textile articles, ski wax, upholstered products, artificial turf, outdoor apparel for severe wet conditions in stages, leading up to full prohibition</td></tr><tr><td>Maryland</td><td>Rugs/carpets, cosmetics, food packaging</td></tr><tr><td>Minnesota</td><td>Food packaging, carpets/rugs, cleaning products, cookware, cosmetic products, dental floss, fabric treatments, juvenile products, menstrual products, textile furnishings, ski wax, upholstered furniture, cannabis/hemp packaging</td></tr><tr><td>New Hampshire</td><td>Carpets/rugs, cosmetic products, textile treatments, feminine hygiene products, food packaging and containers, juvenile products, upholstered furniture, textile furnishings</td></tr><tr><td>New York</td><td>Carpets, food packaging, children’s products</td></tr><tr><td>Oregon</td><td>Foodware containers, cosmetics</td></tr><tr><td>Rhode Island</td><td>Food packaging, artificial turf, carpets/rugs, cookware, cosmetics, fabric treatments, juvenile products, menstrual products, ski wax, textile articles</td></tr><tr><td>Vermont</td><td>Cosmetics, menstrual products, aftermarket stain and water-resistant treatments, artificial turf, cookware, incontinence protection products, residential carpets/rugs, ski wax, textiles, food packaging</td></tr><tr><td>Washington</td><td>Food packaging, cosmetics</td></tr></tbody></table>Many of these laws have labeling and reporting requirements as well. For example, <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB1200" target="_blank">California</a> requires cookware manufacturers to list on their label the presence of PFAS, while <a href="https://www.cga.ct.gov/2024/ACT/PA/PDF/2024PA-00059-R00SB-00292-PA.PDF" target="_blank">Connecticut</a> requires that manufacturers of certain products, such as apparel, cleaning products, and cookware, provide a report to the Connecticut Department of Energy and Environmental Protection outlining the use and amount of PFAS in the product. And notably, the U.S. Environmental Protection Agency promulgated <a href="https://www.mofo.com/resources/insights/240426-pfas-manufacturers-and-importers" target="_blank">retroactive reporting and recordkeeping requirements</a> for PFAS under the Toxic Substances Control Act (TSCA).[4] Under the new TSCA requirements, any entity that manufactures or manufactured PFAS or PFAS-containing articles in any year since January 1, 2011 must report certain information to EPA regarding PFAS uses, production volumes, disposal, exposures, and hazards.[5]Generally, state PFAS laws are enforced by a regulatory agency or the state attorney general, and penalties range from $500 to $25,000 per violation or per day. However, when California’s AB 2515 was introduced, it contained a private right of action that would have allowed private plaintiffs to enforce California’s menstrual product labeling requirements and prohibition on cosmetic products containing intentionally added PFAS. The final version of the bill passed by the legislature this summer omitted this authority, allaying concerns in the regulated community that AB 2515 would spur a cottage industry around private enforcement, like <a href="https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=HSC&division=20.&title=&part=&chapter=6.6.&article" target="_blank">Proposition 65</a> has.Heightened Regulatory Focus on PFASThis wave of legislative action at the state level has been fueled by increasing scrutiny in recent years regarding the potential environmental and health effects of PFAS and is a response to a lack of comprehensive federal legislation. Lawsuits brought under state consumer protection statutes against manufacturers for undisclosed PFAS in their products are on the rise. While some studies have linked PFAS exposure to reproductive and developmental harm and increased risks of cancer, there remains disagreement and uncertainty about both (1) the extent to which these substances are distributed in local environments and (2) the specific danger they might pose. This disagreement is apparent in the lack of harmony across state laws and the products selected for regulation. Because there are thousands of different types of PFAS, it has been difficult to identify and understand the effects of various PFAS chemicals on humans and the environment.Nonetheless, EPA has actively sought to address PFAS in the environment over the past few years. In 2021, EPA announced the Agency’s <a href="https://www.epa.gov/pfas/pfas-strategic-roadmap-epas-commitments-action-2021-2024" target="_blank">PFAS Strategic Roadmap</a> that set out what EPA calls “a whole-of-agency approach to addressing PFAS.” To date, under this comprehensive approach, EPA has:<ul class="li-text-orange"><li class="li-text-orange"><a href="https://www.epa.gov/newsreleases/biden-harris-administration-finalizes-critical-rule-clean-pfas-contamination-protect" target="_blank">Designated PFOA and PFOS as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act</a></li><li class="li-text-orange"><a href="https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas" target="_blank">Issued a drinking water standard for PFAS</a></li><li class="li-text-orange"><a href="https://www.epa.gov/pfas/interim-guidance-destroying-and-disposing-certain-pfas-and-pfas-containing-materials-are-not" target="_blank">Updated interim guidance on the destruction and disposal of PFAS-containing materials</a></li><li class="li-text-orange"><a href="https://www.epa.gov/newsreleases/biden-harris-administration-announces-new-steps-protect-communities-pfas-and-other" target="_blank">Proposed regulations that would list nine PFAS as hazardous constituents under the Resource Conversation and Recovery Act</a></li><li class="li-text-orange"><a href="https://www.epa.gov/toxics-release-inventory-tri-program/addition-certain-pfas-tri-national-defense-authorization-act" target="_blank">Added PFAS to the list of chemicals covered by the Toxics Release Inventory</a></li><li class="li-text-orange"><a href="https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/tsca-section-8a7-reporting-and-recordkeeping" target="_blank">Required reporting for PFAS manufactured and used in the United States under TSCA</a></li></ul>In the coming years, the EPA intends to take further action to better understand and regulate PFAS, including issuing new health standards and limits for PFAS, developing new methods to detect and measure PFAS, and promulgating new rules to reduce PFAS discharges into the environment.[6]While EPA has taken action to address PFAS in the environment, the Consumer Product Safety Commission has yet to propose PFAS regulations for consumer products. In September 2023, the <a href="https://www.federalregister.gov/documents/2023/09/20/2023-20332/per--and-polyfluoroalkyl-substances-pfas-in-consumer-products" target="_blank">CPSC issued a notice to request information</a> on PFAS “used in commerce or potentially used in consumer products, potential exposures associated with the use of PFAS in consumer products, and potential human health effects associated with exposures to PFAS from their use in consumer products.” However, to date, the CPSC has not introduced regulation regarding PFAS in consumer products.Mitigating Risk of EnforcementIn response to heightened litigation risk and the challenge of complying with burdensome and conflicting state laws, many companies are preemptively moving away from the use of PFAS. In August 2019, <a href="https://www.dupont.com/news/dupont-announces-new-and-sustained-commitments-related-to-pfas-chemicals.html" target="_blank">DuPont announced</a> a slate of commitments that would reduce its use of PFAS. In February 2023, <a href="https://www.rei.com/newsroom/article/rei-co-op-raises-bar-for-companies-operating-in-outdoor-industry?srsltid=AfmBOoqnh3p7JNlqJu1DKbPYNbr4aXwcNkhAHvArTEKAta2jJ9HDhc7s" target="_blank">REI Co-op announced</a> that it would be phasing out the sale of products containing PFAS in its stores. Other companies have made similar commitments, including <a href="https://www.patagonia.com/stories/say-goodbye-to-forever-chemicals/story-133800.html" target="_blank">Patagonia, Inc.</a>, <a href="https://stories.starbucks.com/stories/2022/starbucks-innovates-tests-and-learns-from-store-partners-to-achieve-waste-goals/" target="_blank">Starbucks Corp.</a>, and <a href="https://www.tacobell.com/newsroom/taco-bell-2020-commitments?selectedTag=&selectYear=2020" target="_blank">Taco Bell Corp.</a>Yet, for many companies, especially where PFAS is integral to product functionality or safety attributes, the move away from PFAS could take years. These companies are investing substantial resources into research and development to create or identify viable alternatives to PFAS. And even for those who have alternatives, there are other hurdles that can impede efforts to comply with new laws or mitigate litigation risk. For instance, PFAS may be added to product components along the supply chain without the company’s or product manufacturer’s knowledge or control. Likewise, there are a lack of widely available testing capabilities to detect and distinguish PFAS chemicals.To address these hurdles, it is imperative for companies affected by PFAS consumer protection laws to develop risk mitigation strategies, enact policies, and implement controls across their supply chain. Best practices include, among other things, adding PFAS to supplier/manufacturer restricted substances lists and requiring lab testing for intentionally added PFAS on product components.We expect to see increasingly stringent laws restricting the use of PFAS and intensified focus by the plaintiffs’ bar on civil actions as consumer awareness of PFAS in products evolves. To stay at the forefront of these developments, we actively monitor courts and legislatures for changes affecting our clients. Our collaborative teams of Environmental and Consumer Products attorneys regularly advise clients regarding consumer protection laws and are available to assist with PFAS compliance programs and strategic risk mitigation.[1] This client alert does not cover laws that regulate only organohalogenated chemicals or other flame retardants.[2] This map does not include laws that do not expressly regulate PFAS in consumer products, such as <a href="https://www.leg.state.nv.us/App/NELIS/REL/81st2021/Bill/7397/Text" target="_blank">Nevada’s AB 97</a>, which establishes a working group to study issues related to environmental contamination from PFAS.[3] The prohibitions would not apply to products for which the use of PFAS is a “currently unavoidable use.” Minnesota defines this as “a use of PFAS that the [Minnesota Pollution Control Agency] has determined by rule . . . to be essential for health, safety, or the functioning of society and for which alternatives are not reasonably available.” Min. St. § 943.[4] 15 U.S.C. § 2601 et seq.[5] 40 C.F.R. § 705 et seq.[6] For a detailed discussion of EPA’s actions regarding PFAS, see EPA’s <a href="https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf" target="_blank">PFAS Strategic Roadmap: EPA’s Commitments to Action 2021–2024</a>.

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Krista deBoer’s practice involves the full range of environmental, climate, and green claims issues. As a partner in MoFo’s Class Actions + Mass Tort practice group, Krista represents clients in environmental and toxic tort litigation, Proposition 65 litigation, and consumer class actions 

Krista S. deBoer

Krista deBoer

In re Lumber Liquidators Chinese Laminate Litigation

Maxus Energy Corporation

In re Hydroxycut Personal Injury and Class Action Litigation

Los Angeles World Airport (LAWA)

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

Fitbit Force Recall 

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

Seagate Technology LLC

Clif Bar, Inc.

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

William Tarantino

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

William F. Tarantino

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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

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Nevada Enacts CCPA-Style Opt-Out Right for Consumers—but Similarities Are Few

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This month, California chaptered two new bills, AB 2515 and AB 347, regulating per- and polyfluoroalkyl substances (PFAS) in menstrual products and juvenile products, textile articles, and food packaging, respectively.

New Wave of PFAS Legislation Aimed at Consumer Products

While it rarely rules on questions of preemption, the Ninth Circuit took an even rarer step on July 1, 2024 when it took up the question of whether private parties can seek to enforce the provisions of California’s Sherman Law that parallel federal law.Plaintiffs brought suit against Sprout Foods, Inc. (“Sprout”), a manufacturer of baby food, arguing that the labels on the baby food were deceptive and unlawful because they made statements regarding the nutritional content of the baby food, like “3g of Protein” and “5g of Fiber.” Plaintiffs alleged that Sprout’s baby food products were mislabeled under the “unlawful” prong of California’s Unfair Competition Law (UCL) because they were mislabeled under California’s Sherman Law.  Plaintiffs asserted that FDA regulations prohibit certain nutrient content claims on foods intended for children under the age of two and argued that Sprout’s products therefore violated those regulations and the identical provisions of California’s Sherman Law.  Sprout argued that Plaintiffs’ UCL “unlawful” prong claim was impliedly preempted because a violation of the Sherman Law requires a finding that the FDCA has been violated, and the FDCA, in turn, can be enforced only by the United States.  The lower court agreed with Sprout on the issue of preemption, holding that because a violation of the Sherman Law requires a finding that the FDCA has been violated, and the FDCA can be enforced only by the United States, Plaintiffs’ claims were preempted insofar as they originated from, were governed by, and terminated according to federal law.Prior to the Ninth Circuit’s decision, litigants frequently battled over whether lawsuits alleging a violation of the FDCA, but brought under state consumer protection laws, were impliedly preempted.  Federal law preempts state law when Congress has expressly stated or impliedly intended its purpose to do so.  Under the Supreme Court’s holding in Buckman Co. v. Plaintiffs’ Legal Committee, a state law can be preempted in two instances: (1) a plaintiff may not impose food label requirements under state law that are different from those imposed under the FDCA and its regulations, and (2) a plaintiff cannot privately enforce the FDCA.[1]  Accordingly, private claims that “exist solely by virtue of the FDCA,” or where the claim would not exist but for the alleged violation of the FDCA, are impliedly preempted.[2]  In recent years, Plaintiffs in consumer class actions targeting food labeling have argued that even though their claims are based on an underlying violation of the FDCA, their claims are not impliedly preempted.Ninth Circuit Clarifies PreemptionIn reversing the district court’s holding that enforcement of state standards is impliedly preempted by federal law, the Ninth Circuit, in an opinion written by Judge Schroeder, reasoned that federal law contemplated the ability of states, like California, to enact their own parallel laws permitting private rights of action.  The Ninth Circuit held that the critical distinction between Davidson and Buckman was that, in Buckman, Plaintiffs attempted to use state causes of action to obtain damages for violations owed under the FDCA, but in Davidson, Plaintiffs claimed violations of California’s Sherman Law (which runs parallel to the federal FDCA and whose standards are identical to the federal FDCA).[3]  In other words, because Plaintiffs’ UCL “unlawful” prong claim was premised on a violation of California’s Sherman Law, which was identical to the FDCA, Plaintiffs’ claims were not preempted.  The Ninth Circuit reasoned that Congress did not intend for state standards, like those under California’s Sherman Law, to be impliedly preempted and thus permitted states to adopt them: “there is no reason we can perceive why Congress would permit states to enact particular legislation and then deny enforcement by their citizens. . .  Federal law does not support such a strange result.”[4]Furthermore, the Ninth Circuit reasoned that even if it had doubts regarding the interaction between FDA regulations and California’s Sherman Law as applied through the UCL, it would still reverse the lower court’s holding because of the Ninth Circuit’s longstanding presumption against preemption. The Ninth Circuit reiterated that even if Sprout’s interpretation of preemption were equally plausible to that of Plaintiffs, the Court would be bound to ultimately hold that the FDCA does not impliedly preempt private enforcement of the Sherman Law and allow the case to proceed.Judge Collins DissentsJudge Collins dissented from the Ninth Circuit’s preemption holding, writing that a private claim based on state law that simply copies the FDCA’s requirements and has no independent substantive content is impliedly preempted.  Judge Collins distinguished between cases where plaintiffs sought to impose state-law standards with independent content, and state law standards that merely “parasitically cop[y]” the federal standard.[5]  State law standards with independent content were not impliedly preempted, but standards that merely copied the federal standard (as does the Sherman Law) were impliedly preempted.[6]Moreover, Judge Collins reasoned that the Sherman Law may have been intended to provide a right of action for state authorities to bring claims premised on federal regulations, not necessarily to grant private citizens a right of action.  The FDCA prohibits private enforcement of federal law, instead giving that authority to the federal government.[7]  By “permitting” states to enact statutes that mirror the FDCA, it would not be “strange” for the federal government to also limit the enforcement of state laws to state actors.[8]  Judge Collins further noted that enforcement by state authorities would allow for additional remedies provided by state courts that are not afforded by the FDCA, such as monetary damages.TakeawaysThe Ninth Circuit’s holding in Davidson clarifies the outer bounds of implied preemption in cases in which plaintiffs seek to leverage highly technical federal regulations in litigation through California’s Sherman Law and the “unlawful” prong of the UCL.  Notably, Davidson is the first case to reach the Ninth Circuit on implied preemption, California’s Sherman Law, and food labels.  Accordingly, the legal landscape is likely to continue to evolve as courts grapple with Davidson’s application.  Morrison Foerster will continue to monitor the impact of this ruling and is available to provide legal guidance to clients on the ramifications of this decision.<hr class="divider">[1] Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 353 (2001); 21 U.S.C. §§ 343-1, 337(a).[2] Id.[3] Id.; Davidson v. Sprout Foods, Inc., 2024 WL 3213277, at *6 (9th Cir. June 28, 2024).[4] Davidson v. Sprout Foods, Inc., 2024 WL 3213277, at *6.[5] Id. at *12.[6] Id.[7] Id. at *17.[8] Id.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

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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 mat

Claudia Vetesi

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

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Lena is an associate in the Litigation Department in Morrison Foerster’s San Francisco office. Lena’s practice focuses on commercial and class actions litigation, with an emphasis on false advertising, unfair competition, and antitrust. Lena regularly counsels clients in the food and beverage, dietary supplement, cosmetics, retail, and technology sectors.











Lena Gankin

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Mamie Tabet is an associate in the Litigation Department of Morrison Foerster’s San Francisco office.

Mamie Tabet

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Passing on Preemption: Ninth Circuit Holds That California’s Sherman Law Is Not Impliedly Preempted

High Court Orders Rethink Of $9.7M Award After TransUnion

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While it rarely rules on questions of preemption, the Ninth Circuit took an even rarer step on July 1, 2024 when it took up the question of whether private parties can seek to enforce the provisions of California’s Sherman Law that parallel federal law.

Passing on Preemption: Ninth Circuit Holds That California’s Sherman Law Is Not Impliedly Preempted

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