Emerging Products & Technology

From apparel companies that have shifted from making clothing to making face masks, to distilleries and breweries that are now producing hand sanitizer, to consumer goods and auto makers manufacturing ventilators and respirators, manufacturers nationwide have shifted their production lines to meet what consumers need during the COVID-19 pandemic.
Continue Reading Retooling in the Midst of COVID-19: Statutory Protections for Manufacturers

Cannabidiol (CBD) is a naturally occurring compound derived from the hemp plant, a member of the cannabis family. Because CBD is also found in the marijuana plant (a cousin of hemp), its use fell into a legal gray area until recently.

In December 2018, however, Congress passed the Farm Bill and legalized hemp and hemp-derived products. CBD products since have skyrocketed in popularity, with analysts projecting that CBD will grow to a $16 billion industry in five years. CBD product manufacturers and retailers across America are working to meet the high demand for their goods.
Continue Reading CBD Manufacturers and Retailers Face Action from the FDA and Consumer Litigants

“Hello.  This is an automated call from Acme Manufacturing. Our records indicate that you purchased Product X between December 2019 and January 2020. We wanted to let you know that we are recalling Product X because of a potential fire risk. Please call us or visit our website for important information on how to participate in this recall.”

When companies recall products, they do so to protect consumers.  In fact, various federal laws, including the Consumer Product Safety Act (CPSA), the Federal Food, Drug, and Cosmetic Act (FDCA), and National Highway and Motor Vehicle Safety Act (MVSA), encourage (and may require) recalls. And the agencies that enforce these statutes would likely approve of the hypothetical automated call above, because direct notification is the best way to motivate consumer responses to recalls.[1]

But automated calls to protect consumers can run into a problem: the Telephone Consumer Protection Act (TCPA).
Continue Reading Clash of Consumer Protection Goals: Does the Text of the TCPA Frustrate the Purposes of the CPSA?

When plaintiffs sue companies alleging that their websites do not comply with the Americans with Disabilities Act (ADA), courts start by answering two threshold legal questions. Does the ADA apply to websites? And if it does, which websites does it apply to? At least seven federal circuit courts have answered these questions and have reached three different conclusions. Until recently, California courts had provided little guidance. But on September 3, 2019, the Second Appellate District of the California Court of Appeal decided Thurston v. Midvale Corporation (Case No. B291631). Thurston clarifies that commercial websites with a “nexus” to a physical location are subject to the ADA.
Continue Reading California Court of Appeal Aligns with Ninth Circuit on ADA Website Accessibility Standards

Technology has changed all of our day-to-day lives. It also has impacted how lawyers practice. While having the internet at our fingertips is a convenience for most of us, it can cause headaches for judges and lawyers when jurors use the internet during trial to post or search online about the case. This means that lawyers must be more tech-competent than ever before. Here are two ways that technology has changed how lawyers practice:
Continue Reading Two Ways Technology Has Changed How Lawyers Practice

A few years ago, hoverboards drew a lot of attention from the U.S. Consumer Product Safety Commission (CPSC). Formally known as self-balancing electric scooters, hoverboards became an instant success because they combined practical mobility and enjoyment. But that success was not without some setbacks. When news stories in 2015 linked hoverboards to fires (which we wrote about here), the same popularity that drove sales also attracted public and government scrutiny.

Continue Reading Is Electric Scooter Safety Next on the Regulatory Menu?

When California enacted SB 327 last year, it became the first state to regulate Internet of Things (IoT) devices, which refer to physical devices that are connected to the internet. Beginning next January, the new law will require manufacturers of IoT devices sold in California to implement reasonable security features that protect the software, data, and information contained within them. While the law regulates only the minimum security standards for IoT devices, its definition of a “connected device” (i.e., an IoT device) may impact product liability claims because “connected devices” are physical objects and not technology. SB 327’s definition suggests that manufacturers of the software in IoT devices may not be held strictly liable for software defects, because the law aligns with and reinforces the view of most courts that software is not a product, but a service.
Continue Reading Product Liability in the Internet of Things

It’s a typical marketing story: Not too long ago, manufacturers marketed coconut oil as a heat-tolerant alternative to other cooking oils. They further promoted it by noting that it was more sustainably harvested than palm oil and could replace butter for people avoiding dairy.

But then coconut oil marketing took a turn. People—not the manufacturers but social media influencers—started to talk about coconut oil in a different way. Influencers claimed that coconut oil was a “miracle cure” for a variety of health and other problems.
Continue Reading How Manufacturers Can Work With Social Media Influencers

“Smart luggage” is truly smart. Companies have created sleek, stylish bags that also contain practical, convenient accessories. Although smart luggage solves all sorts of problems, it has grabbed the attention of airlines and authorities due to the use of lithium batteries.

When companies develop new products, they can often turn to existing regulations to inform the plan and design, ensuring that it complies with the regulations when it is released. But sometimes innovation can make things a bit more complicated. Incorporating new features like an internal scale, GPS tracking, TSA-approved locks, and USB ports to charge electronics, smart luggage perfectly illustrates this tricky situation.
Continue Reading Speed and Flexibility: A Smart Approach to Developing Policies

Under the recently enacted FDA Reauthorization Act of 2017, drug and device manufacturers will have more time to report device malfunctions to the U.S. Food and Drug Administration (FDA).

Current standards require medical device malfunction reports to the FDA within 30 days. The 2017 Act maintains the 30-day deadline for reporting events that have already resulted in serious medical consequences to users—“adverse events.” But the Act expands the quarterly reporting function, allowing 90 days to report issues that may cause harm in the future but have not yet resulted in patient complications, injuries, or deaths—“malfunctions.” The Act also allows companies to submit summary malfunction reports when the incident reported is already known and understood by the FDA, rather than reporting incidents individually.
Continue Reading New Legislation Gives More Time for Medical Device Reporting