As the partial federal government shutdown enters its second week, businesses both large and small should be aware of the shutdown’s implications for the U.S. Consumer Product Safety Commission (CPSC) and for product safety. Companies should be aware that their obligations under CPSC continue, despite that their partner in product safety is absent until its funding is restored.

Continue Reading Four Things You Should Know to Navigate the CPSC Shutdown

During the holidays, many Americans flock to nearby stores to buy presents and decorations. And given today’s global economy, many of those products are made by foreign manufacturers. But what happens if the product fails in a manner that could give rise to potential legal liability? That raises the question of when a domestic plaintiff can sue the manufacturer of a product manufactured outside the United States.

Therein lies the artificial Christmas tree conundrum. Historically, plaintiffs would turn to the “stream of commerce” doctrine to seek personal jurisdiction over product manufacturers and distributors that are not present in the forum state. Sometimes they were successful, but sometimes they were not. And the U.S. Supreme Court’s recent decision in Bristol-Myers Squibb Co. v. Superior Court of California[1] is further muddying the waters. Continue Reading Santa May Reach All 50 States, but Personal Jurisdiction May Not

On October 5, 2018, the U.S. Consumer Product Safety Commission (CPSC) announced that it had negotiated a $3.85 million civil penalty with Costco Wholesale Corporation over an alleged failure to report product hazards involving an electronic trash can, which CPSC alleged violated the Consumer Product Safety Act. Continue Reading Manufacturers, Retailers, and CPSC Reporting Penalties

Riding a scooter up and down the block was a common and enjoyable pastime for many when they were kids. Now, the child’s kick scooter has been reimagined as an environmentally friendly and nostalgia-filled commute option: the electric scooter. Electric scooters have cropped up in major cities across the country, including Austin, Nashville, Los Angeles, San Francisco, Scottsdale, Washington, D.C., and Atlanta. The scooters are affordable ($1.00 for the first minute and less after that) and easy to access. They are dockless and so bring mobility to people who otherwise don’t own a car or live near public transit, remove congestion from the roads, and help cities go green. Continue Reading Riding Ahead of the Electric Scooter Curve

Generic pharmaceutical drugs are versions of brand-name counterparts with one major difference:  they typically cost a lot less. By FDA regulation, the two have the same active ingredients, dosage forms and strengths, and routes of administration.[1] And while federal law generally regulates pharmaceutical approval, states can regulate pharmaceutical distribution. Why is this significant? All states permit pharmacies to substitute generic drugs for the brand name equivalent, and some states require substitution in certain circumstances.[2] But a generic pharmaceutical company cannot change the brand company’s product label, so a person’s ability to sue a drug manufacturer is limited to the brand company who created the label.[3] Continue Reading Generically Speaking: Liability is Limited in Failure to Warn Claims

In many mass tort cases, and particularly in cases involving exposure to a substance with a long latency period, defendants and plaintiffs must rely on documents created decades ago. That’s challenging, of course, because many of these documents are hearsay and often there’s no one around with personal knowledge of their authenticity or contents. But there is hope for parties trying to admit these documents: they may be able to call on the ancient document hearsay exception. Continue Reading Time Marches On, Memories Fade, and Witnesses Die: How Lawyers Can Use the Underutilized Ancient Document Hearsay Exception

Long-anticipated changes to California’s Proposition 65 warning requirements took effect on August 30, 2018, through amendments and new rules issued by the California Office of Environmental Health Hazard Assessment. Among other changes, the new rules now (1) require businesses to provide California consumers with product warnings at the time of purchase, including at the time of online purchases; and (2) change the text of the warnings that businesses may use to qualify for “safe harbor” protections. The new warning requirements apply only to products manufactured after August 30, 2018. Continue Reading New California Prop 65 Warning Requirements: What Businesses Should Consider Now

Manufacturers start with good intentions. They endeavor to create and develop safe products, advertise them accurately, and equip consumers with sufficient warnings and instructions to enable safe and proper use of their products. But despite these efforts, consumers will occasionally find ways to misuse or abuse products in ways that the manufacturer neither intended nor, in some cases, even contemplated.

Continue Reading When Do Manufacturers Need to Anticipate Misuses – and Abuses – of Their Products?

“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

If a company facing a recall has managed it effectively, the hardest part is probably over. After writing about how companies can prepare for and manage an effective recall, here are strategies companies can use to restore order and maintain brand loyalty following a product recall. Continue Reading Managing Product Recalls: What to Do After a Recall