Earlier this year, the European Commission decided to ban titanium dioxide as a food additive in the European Union, with a six-month phasing-out period that culminated in a full ban as of August 7, 2022. The decision was based on a recent assessment by the European Food Safety Authority, which had raised concerns over the
A Closer Look: Express Federal Preemption for OTC Medications Subject to Monographs
Manufacturers of over-the-counter (OTC) medications often move to dismiss consumer class actions based on federal preemption. The Federal Food, Drug, and Cosmetic Act (FDCA) contains an express preemption clause that forbids states from enforcing laws relating to OTC drugs that are “different from or in addition to, or that [are] otherwise not identical with, a requirement under” the FDCA. 21 U.S.C. § 379r(a). (Section 379r also contains a savings clause that exempts product liability actions from its preemptive scope. See id. § 379r(e).) Similar preemption provisions exist for food and cosmetics. Id. §§ 343-1(a), 379s(a). Although most courts have interpreted the FDCA’s express preemption provisions broadly, a minority have limited their application. As discussed below, the minority view involves distinguishable circumstances and is inconsistent with the FDCA’s statutory text.
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A Closer Look: Arbitration Clauses Added to Account Agreements Face Risks After Supreme Court Declines Review of Sixth Circuit’s BB&T Decision
The Supreme Court recently declined to review the Sixth Circuit’s decision in Sevier County Schools Federal Credit Union v. Branch Banking & Trust Co., 990 F.3d 470 (6th Cir. 2021), which presents a potential challenge to enforcing arbitration clauses added to standard account agreements. The cert denial serves as a reminder that companies introducing arbitration agreements should take care to follow all contractual change-of-term requirements and create a record of affirmative customer assent whenever possible.
Were You Exposed to Toxic Substances in Consumer Products? You May Lack Standing to Sue in the Third Circuit.
A consumer purchases a product and later finds out that the product was contaminated with a toxic substance. Was the consumer injured? Without knowing more, the answer is “no”—at least for the purposes of establishing standing in the Third Circuit. In Koronthaly v. L’Oreal USA, Inc., 374 F. App’x 257, 259 (3d Cir. 2010), the court held that mere exposure to lead in lipstick was not sufficient to support standing. Years later, in In re Johnson & Johnson Talcum Powder Prods. Mktg., Sales Practice & Liability Litigation, 903 F.3d 278, 289, 290 n. 15 (3d Cir. 2018), the court held that mere exposure to a carcinogen in talcum powder is likewise not enough to establish standing.
Following this trend, District Judge Chesler in the District of New Jersey recently dismissed a case where plaintiffs alleged they purchased baby food contaminated with heavy metals. See Kimca v. Sprout Foods, Inc. d/b/a Sprout Organic Foods, 2022 WL 1213488 (D.N.J. Apr. 25, 2022).
A Closer Look: D.C. Court of Appeals Endorses Broad Organizational Standing to Bring Consumer Protection Lawsuits
We previously reported on a surge of mislabeling suits filed in District of Columbia Superior Court, following lower court decisions that purported to grant “tester” plaintiffs—individuals and organizations that purchase products simply to test whether the representations about a product are true—a right to sue on behalf of the general public under the District of Columbia Consumer Protection Procedures Act (“CPPA”). A year later, the District of Columbia Court of Appeals has endorsed an even more expansive interpretation of the CPPA, permitting a public interest organization to bring such actions even if the organization fails to satisfy Article III’s standing requirements. We expect even more lawsuits to be filed in the wake of this decision.