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

On January 9, 2017, the United States Supreme Court granted review over a case from the California Supreme Court that could affect whether plaintiffs can bring product liability and mass tort claims in states where they don’t live and didn’t suffer an injury.

In Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, No. 16-466, the Court will decide whether the California courts properly asserted jurisdiction over Bristol-Meyers Squibb (BMS). It will consider where companies that operate nationwide businesses can be sued, and how their activities in a state—including marketing or sales—could expose them to a lawsuit there.

If the Court decides that California courts have jurisdiction over BMS in this case, then companies could face more nonresident plaintiff lawsuits, particularly in California. For companies, these lawsuits could mean facing potentially plaintiff-friendly laws and courts and the inconvenience of defending a case in another part of the country.
Continue Reading

In California, a federal judge approved a class certification motion in a suit against ConAgra Food Inc. for alleged mislabeling of its Wesson oil products.  The dispute is based on allegations that ConAgra mislabeled oil as “100% natural.”  Plaintiffs argue the oil is not natural because it contains genetically modified ingredients. Further up the coast in Oregon, voters will decide this fall whether to require genetically modified food sold in the state to be labeled as such.  This issue has come up in several states, including Washington and California, where voters have rejected similar proposals in recent years.

The California case, In re: Conagra Foods Inc., includes certified classes of consumers from California, Colorado, Florida, Illinois, Indiana, Nebraska, New York, Ohio, Oregon, South Dakota, and Texas.  U.S. District Judge Margaret M. Morrow will allow plaintiffs to pursue claims brought under the states’ various consumer protection statutes, but she will not allow an injunctive relief class to proceed.
Continue Reading

“Made in the USA” does not necessarily mean the same thing outside of California.  In a recent decision, Paz v. AG Adriano Goldschmied Inc., a federal judge refused to dismiss a class action “Made in the USA” lawsuit, based on California’s strict regulation about the use of “Made in the USA” labels, suggesting that retailers may need to use different labels on the same goods depending on whether they are being sold inside or outside of California.

The issue stems from the fact that California is the only state in the union with its own statute governing the use of “Made in the USA” labels on consumer products.  Most states use the Federal Trade Commission’s (FTC) regulation, which requires “all or virtually all” of the product be made in the United States to qualify for a “Made in the USA” label.  The FTC regulation allows small amounts of foreign parts to be included as long as the product’s final assembly or processing happens in the U.S.  In contrast, California’s stricter regulation prohibits use of the label if the merchandise “or any article, unit, or part thereof, has been entirely or substantially made, manufactured or produced outside the United States.”
Continue Reading

The Los Angeles County Superior Court denied a request to apply Iranian law in an asbestos wrongful death action in August, 2014.  We have previously discussed that decision on this blog and explained that the court was concerned that the application of Iranian law would not be permissible because mullahs administer the law, and Shi’ite Islamic law may be used to decide the case. The court invited appellate review of thedecision, acknowledging that the question of whether to apply Iranian law is a controlling question of law as to which there are substantial grounds for difference of opinion. Recently, five California law professors wrote an amici curie letter brief to the Second District Court of Appeal arguing the Superior Court failed to conduct the appropriate choice of law inquiry.

Professors Eugene Volokh of UCLA, Alan Brownstein of UC Davis, Michael Helfand of Pepperdine University, Clyde Spillenger of UCLA and Jonathan Varat of UCLA, urged the Appellate Court to take one of the following two steps: either conduct the choice of law inquiry without categorically rejecting the possibility of applying Iranian law, or issue a writ of mandate, disapproving of the Superior Court’s categorical rejection of Iranian law and requiring the Superior Court to conduct the conventional California choice of law inquiry.
Continue Reading

Sugar-sweetened drinks in Berkeley, California, might get a little more expensive.  This week, voters in Berkeley, California went to the polls and supported passing a one-cent-per-ounce tax on the distribution of sugary beverages.  The November 2014 ballot initiative overwhelmingly passed with more than 3/4 of voters favoring the tax.  The vote makes Berkeley the first city in the country to pass a soda tax according to the USA TODAY.  A similar initiative across the Bay in San Francisco, however, failed to garner the 2/3 support of voters necessary to pass.

The Berkeley tax is another chapter in the California “Sugar Wars.” Earlier this year, a California’s state senator’s proposed legislation requiring sodas and other sugar-sweetened drinks to carry a label was voted down by the California Assembly Committee on Health by an 8-7 vote on Tuesday, June 17th.  The proposed label would have required the following language “CALIFORNIA SAFETY WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.”  See the related post here.
Continue Reading

Pressure by environmental activists about the alleged health hazards associated with flame retardants commonly used in consumer products appears to be having some impact.  Senator Charles Shumer (D-NY) recently proposed legislation that would ban what he calls “the ten worst” flame retardants from upholstered furniture and children’s products including changing table pads, portable crib mattresses, pajamas, nap mats, and nursing pillows. His bill would ban TDCPP, TCEP, TBBPA, decabromodiphenyl ether, antimony trioxide, HBCD, TBPH, TBB, chlorinated paraffins, and TCPP.  In addition to banning some flame retardants, Schumer’s bill will also require the Consumer Product Safety Commission to study all others to identify dangers and possibly ban them as well.  The legislation has been dubbed “The Children and Firefighter Protection Act.”

According to Sen. Schumer’s press release, his proposed legislation responds to claims that flame retardants can cause developmental delays in children and cancers in firefighters when the material burns. 
Continue Reading

In two recent appellate court decisions, the California Court of Appeal refused to exert general jurisdiction over the foreign defendants.  These decisions provide important guidance for foreign entities with California contacts regarding the ability of California courts to assert jurisdiction over them in civil lawsuits.
Continue Reading

California courts have, for years, wrestled with the standard for product identification in asbestos cases.  While courts have allowed plaintiffs’ claims to survive summary judgment based on inferences of exposure to a defendant’s product, the inferences favorable to the plaintiff must be more reasonable and probable than the inferences against him or her.  Drawing a distinction between a mere possibility of exposure and a probability that may create a triable issue of fact is not always an easy task.
Continue Reading

California’s attempt to become the first state to require warning labels on soft drinks and other sugary beverages has failed.  State Senator Bill Monning’s proposed legislation would have required sodas and other sugar-sweetened drinks to carry a label reading, “CALIFORNIA SAFETY WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.”  Drinks required to carry the labels would have included those which contain added sweeteners and have seventy-five (75) or more calories per twelve (12) ounces.  Milk-based beverages, including frappucinos, lattes, and chocolate milk, would have been exempt from the bill.  The bill was voted down by the California Assembly Committee on Health by an 8-7 vote on Tuesday, June 17th.  The bill needed 10 votes to pass.
Continue Reading