When Santa Brings a Dud

Most holiday seasons, an “it” toy stands at the top of children’s wish lists. With this instant rise in popularity frequently comes a corresponding rise in consumer complaints. Years ago, the consumer complaints might get some media attention—but that attention usually focused on the consumer competition to acquire the demand-exceeds-supply product.

Now, people turn to social media to detail in words, pictures, and video any perceived problem with their much-hyped purchase. This contributes to a manufacturer’s nightmare, trying to quickly determine which complaints are just disappointed expectation and which might actually be a consumer safety issue. Can manufacturers likewise use social media to help calm the storm? Continue Reading

TSCA and Asbestos—a New Approach or One That Reveals the Same Old Problems?

On November 29, EPA announced that it will review the hazard and exposure risks caused by asbestos. Asbestos will be one of the first ten substances to be evaluated under the TSCA amendments commonly referred to as the Lautenberg Act. As we have discussed elsewhere, TSCA now requires EPA to produce a risk evaluation work plan for these substances by June 2017 and complete its evaluation within three years following. If EPA determines any of these substances pose unreasonable risks, then EPA must take further action to mitigate any risks. Continue Reading

Federal GMO Disclosure Law Creates Uniform Standards for Food Manufacturers & Provides Options for Disclosure

This summer President Obama signed a new federal law requiring food manufacturers to disclose information regarding genetically modified organisms (GMO). The new law is different from the 2015 proposed GMO legislation which restricted states from enacting GMO labeling laws but didn’t contain federal labeling requirements.

The law represents a compromise between consumer groups and food manufacturers: it gives consumers access to information, and manufacturers flexible means of compliance and the benefit of a uniform federal standard.

The federal law, titled The National Bioengineered Food Disclosure Standard, leaves many issues unsettled. Two areas are attracting the most attention: the law’s digital disclosure methods and the definition of bioengineered food.


The July 2016 law (P. Law 114-216) preempts state GMO labeling laws, which had been passed in Vermont, Connecticut, and Maine. Pro-labeling groups argued that federal action was necessary to prevent a confusing system of state requirements, and manufacturers agreed. After the law passed, the Grocery Manufacturers Association stated that a “consistent national standard is far better than a costly and confusing patchwork of different state labeling.”

The USDA has two years to develop and implement the new federal law, including deciding what must be labeled. The law immediately preempted state GMO laws.

Digital Disclosures on Food Products

Many food companies support the law because it gives them multiple labeling options. Manufacturers may use text, symbol, websites, 1-800 numbers, and QR codes –bar codes that consumers can scan with smartphones – on their products. If manufacturers use QR codes or websites, they must include instructions on the package like “scan for more information.”

The federal law is a clear departure from the state laws it preempts. Those laws required the words “genetically modified” on bioengineered food labels. Now manufacturers need not write “GMO” on their food products. Many are already voluntarily complying by using QR codes on food.

Certain pro-labeling organizations are unhappy with this labeling option, arguing that it disadvantages low-income consumers who may not have the technology needed to obtain disclosure information.

But the law recognizes digital links may not be workable and requires the USDA to conduct a study in the first year on “whether consumers would have access to the […] digital disclosure methods.” If the study results indicate consumers do not have access to the digital disclosures, the USDA will provide “comparable options” for disclosure.

Not All GM Ingredients Require Disclosure

The law gives the USDA discretion to determine the amount of GMO material that triggers disclosure. The law also provides exceptions for certain food products:

  1. Oils and Starches: Food manufacturers are not required to disclose highly refined products like corn syrup and soybean oil. These products fall outside the law’s definition of bioengineered food because they contain no genetic “material.”
  2. Certain animal products: Manufacturers need not disclose products made from animals that are fed bioengineered feed.

The second exception mirrors the EU’s GMO disclosure law, but raises a significant point of disagreement among scientists and food activists. Labeling of GMO fed livestock was the basis for a consumer class action lawsuit against Chipotle in 2015. There customers claimed Chipotle’s non-GMO claims were false because Chipotle used ingredients from GMO-fed animals. These claims against Chipotle are still pending, though the plaintiff is struggling to show any injury suffered from consuming GMO-fed animal products.

These exceptions point to the broader GMO debate. Scientists argue that there is no health or safety difference between bioengineered food and non-bioengineered food. But organic food organizations say more testing is needed, and urge manufacturers to disclose all genetically modified ingredients.

A Look to the Future

There are more labeling debates ahead.  Many pro-labeling organizations express concern that the law is too lenient and leaves out significant amounts of bioengineered food. The Organic Trade Association voiced support for the law, calling it “a constructive solution to a complex issue,” but one that requires improvement. It plans to stay involved as the USDA develops the law’s specifics. Food manufacturers are staying involved in the process as well to ensure their interests are represented.


*Hannah will be sworn in to the Illinois Bar on November 10, 2016. This article was authored under the supervision of Amy Rubenstein.

California Releases New Prop 65 Warning Regulations

After considering them for more than a year, California’s Office of Health Hazard Assessment (OEHHA) has finally issued new “Safe Harbor” warning regulations for Proposition 65. The new regulations intend to provide consumers “more specificity” about the chemical content of products sold in California.  They take effect on August 30, 2018 and are set forth in California Health and Safety Code sections 25600, et seq. Continue Reading


Earlier this month, the Food and Drug Administration (FDA) banned 19 chemicals found in antibacterial hand and body washes. Included in this list is triclosan, a widely used ingredient in antibacterial soap.

The FDA’s new rule has been in the works for nearly four decades. The FDA proposed its first triclosan regulation in 1978 but never moved forward. Then, in 2013, the FDA called for a re-evaluation of over-the-counter antibacterial products. It asked companies to conduct additional studies and provide information on the safety and effectiveness of their antibacterial products containing any of one of 22 different ingredients. Continue Reading

Fracking Debate Moves into Insurance Realm

The gloves are off in a lawsuit in the Southern District of New York where an insurer and an oil and gas company disagree about whether the company’s insurance policy covers claims that fracking causes earthquakes. On June 27, 2016, insurer Lloyd’s sued New Dominion, arguing that the Lloyd’s pollution liability policies do not provide coverage because fracking is not a “pollution condition.” (See: Complaint for Declaratory Relief.) The Lloyd’s lawsuit relates to five other Oklahoma lawsuits addressing the same issue. (See: Complaints in Oklahoma lawsuits.)

With this lawsuit, the fracking debate moves into a new arena: insurance coverage disputes. Continue Reading

Made in the USA (For the Most Part)

Newspaper headlines report a new economic trend—manufacturing is returning to the United States. The country’s industrial production grew by 0.7 percent in July, its biggest jump since November 2014. This number represents everything made by factories, mines, and utilities. Before companies start slapping “Made in the USA” labels on their wares, they need to make sure they are familiar with the legal requirements to do so.

The Federal Trade Commission (the FTC) monitors the marketplace and aims to keep businesses from misleading consumers. Within the FTC’s jurisdiction is regulating “Made in the USA” claims. Continue Reading

CPSC Chairman Attempts To Bridge The Divide, Signaling That Higher CPSC Civil Penalties Are Here To Stay

Airing dirty laundry. The CPSC has made public its internal dispute over civil penalties. On July 20, 2016, Consumer Product Safety Commission Chairman Elliot Kaye and Commissioner Robert Adler issued a joint statement addressing the diverging views among the CPSC commissioners over the agency’s recent settlements. The joint statement responded to other commissioners who had criticized CPSC’s higher civil penalty settlements. Continue Reading

Tesla Crash: Don’t Slam the Brakes on Autopilot

After 130 million miles driven without a fatality, Tesla Autopilot’s perfect track record ended tragically on May 7 with the first fatal crash of a car using Autopilot. Given the infrequency of fatal crashes involving autonomous vehicles, why are commentators suggesting that the auto industry “put the brakes” on this technology?

That’s unclear, especially with the facts here. Autopilot has a better safety record than human drivers. Overall, drivers in the United States cause one fatality roughly every 93 million miles. This was Autopilot’s first fatal accident in over 130 million miles driven. Continue Reading