CPSC

  • On October 26, 2017, CPSC issued a Final Decision and Order holding that Zen Magnets and Neoballs rare-earth magnet sets (Zen Magnets) are a substantial product hazard. CPSC ordered a stop sale of Zen Magnets and ordered the parties to submit to the Commission within 30 days a proposed corrective action plan that includes a refund and notice to the public. The Commission’s Final Decision and Order sets aside a March 2016 administrative law judge’s ruling that Zen Magnets did not present a substantial product hazard when accompanied by warnings and proper age recommendations and that had ordered only a partial recall of Zen Magnets.
  • The U.S. Consumer Product Safety Commission (CPSC) voted 3 to 2 on October 18, 2017, to issue a final rule prohibiting children’s toys and child care articles containing more than 0.1 percent of certain phthalate chemicals. On October 27, 2017, CPSC published a final rule, Prohibition of Children's Toys and Child Care Articles Containing Specified Phthalates, the prohibition affects children's toys and child care articles that contain concentrations of more than 0.1 percent of diisononyl phthalate (DINP), diisobutyl phthalate (DIBP), di-n-pentyl phthalate (DPENP), di-n-hexyl phthalate (DHEXP), or dicyclohexyl phthalate (DCHP). This rule fulfills CPSC’s requirement to promulgate a final rule after receiving the final Chronic Hazard Advisory Panel (CHAP) study on the effects on children's health of all phthalates and phthalate alternatives as used in children's toys and child care articles and CHAP’s report providing recommendations to the CPSC regarding whether any phthalates or phthalate alternatives, other than those already permanently prohibited, should be prohibited. The rule will take effect 180 days after publication, on April 25, 2018.
  • On October 27, 2017, CPSC issued a notice of proposed rulemaking that would update the existing notice of requirements (NOR) for prohibitions of children's toys and child care articles containing specified phthalates that provide the criteria and process for Commission acceptance of accreditation pursuant to the Consumer Product Safety Act (CPSA). The proposed NOR would revise the current NOR to be consistent with the final phthalates rule, described above and codified in the Code of Federal Regulations (CFR). Comments are due by January 10, 2018.
  • On November 17, 2017, CPSC released its Agency Financial Report for Fiscal Year 2017. The purpose of the U.S. Consumer Product Safety Commission’s Fiscal Year (FY) 2017 Agency Financial Report (AFR) is to assist Congress, the President, and the American people in assessing the agency’s stewardship of the resources it is provided. This annual report is required by legislation and complies with the requirements of the Office of Management and Budget’s Circulars A-11, Preparation, Submission, and Execution of the Budget, and A-136, Financial Reporting Requirements. An Annual Performance Report (APR), which focuses on strategic goals and performance results will be published in February 2018. The FY 2017 APR will provide more detailed performance information and analysis of performance results.

FDA

  • On Wednesday, October 25, 2017, Dr. Scott Gottlieb, commissioner of the Food and Drug Administration, proposed his agency take a more active role combating opioid drug abuse in the U.S., including urging greater use of addiction-treatment medicines. He told members of the House Committee on Energy and Commerce at a Wednesday hearing on narcotic painkillers that such a role for the FDA, which could include convening meetings to discuss the evidence of treatment benefits from drugs like naltrexone and buprenorphine, is a response to the seriousness of the current opioid-addiction crisis. The following day, President Donald Trump declared opioid addiction a “public health emergency” as he sought to accelerate a federal government response to the crisis. President Trump also said his administration was looking at bringing lawsuits against unspecified “bad actor” companies. President Trump’s declaration did not include a commitment to new funding.

FTC

  • On October 19, 2017, the White House announced that President Trump picked Joseph J. Simons, a veteran antitrust lawyer who has represented tech giants like Microsoft, to lead the Federal Trade Commission. Mr. Trump has also chosen Noah Phillips, chief counsel for Senator John Cornyn, Republican of Texas, and Rohit Chopra, a fellow at a consumer advocacy group, to fill the remaining two seats at the agency. The timing of the official nominations is unclear. They will be reviewed by Congress but are expected to be approved.
  • On November 30, 2017, Health Research Laboratories, LLC and its owner Kramer Duhon (collectively, HRL) agreed to settle several deceptive advertising charges by the FTC and the State of Maine. HRL marketed two products, BioTherapex and NeuroPlus with unsubstantiated health claims, and also offered customers “risk-free trial offers” that came with undisclosed requirements attached, including having the customer pay shipping costs, and a deceptively short trial period (e.g., the trial was for 30 or 60 days, but the 10–14 days the product took to arrive ate into that trial period). The settlement bans the defendants from making any of the FTC’s seven “Gut Check” weight loss claims, requires human clinical testing to support future health-related claims, requires competent and reliable scientific evidence to support other health benefit claims, prohibits defendants from misrepresenting the terms of free or risk-free trial offers, requires defendants to get consumers’ consent for negative option offers prior to using consumers’ billing information to obtain payment, and prohibits misrepresentations about consumer or expert endorsers. The order imposes a judgment of $3.7 million, which will be suspended upon payment of $800,000.
  • On December 4, 2017, the FTC announced that it will hold a public workshop in Washington, DC, on March 7, 2018 “to explore issues regarding competition in the contact lens marketplace, consumer access to contact lenses, prescription release and portability, and related subjects.” This workshop comes during the Commission’s regulatory review of the Contact Lens Rule. The workshop will cover topics including: consumers’ ability to comparison shop for contact lenses; the use of electronic health records, patient portals, and other technology to improve prescription portability; the interaction between the Contact Lens Rule and emerging telehealth business models; the potential for new technology to improve the prescription verification process; and modifications to the Rule to foster competition and maximize consumer benefits, including benefits to eye health.
  • On December 12, 2017, the FTC hosted an Informational Injury workshop discussing consumer injury in the context of privacy and data security. Panelists discussed how to characterize these injuries, how to measure them, and what factors businesses and consumers consider when evaluating the tradeoffs between providing consumer information and potentially increasing their exposure to injuries.

NAD

  • On November 14, 2017, the Beech-Nut Nutrition Company has said it will discontinue all advertising claims challenged by Nestle Nutrition U.S. before the National Advertising Division. Nestle, maker of Gerber infant foods, challenged claims made in advertising for Beech-Nut infant cereal products. In response to NAD’s initial inquiry, Beech-Nut said that it had decided for unrelated business reasons to permanently discontinue several of the claims at issue before Gerber filed a challenge. Further, Beech-Nut stated that it has discontinued all of the advertising at the center of the challenger’s complaint and argued that NAD should administratively close the proceedings. NAD determined that many of the claims continued to appear in the marketplace after it opened its inquiry. NAD declined to administratively close the matter. However, in reliance on the advertiser’s representation that the claims have been permanently discontinued, NAD did not review the claims on their merits. The voluntarily discontinued claims will be treated, for compliance purposes, as though NAD recommended their discontinuance and the advertiser agreed to comply.
  • The National Advertising Division has recommended that Too Faced Cosmetics, LLC, discontinue the “1,944% more volume” claim – and before and after photographs – made on product packaging and online videos for the company’s Better Than Sex original and waterproof mascara. NAD reviewed Too Faced Cosmetics’ testing and found that the testing could not support performance claims because the methodology was not consumer relevant. NAD also determined that the advertiser’s “before” and “after” images reasonably conveyed a message that consumers using the product will achieve similar eyelash volume when they apply the product according to its use instructions without reliable evidence in the record demonstrating that consumers will achieve a similar eyelash volume – a claim not supported by Too Faced’s testing. The company said it will appeal NAD’s decision.