With a new executive administration getting its bearings in Washington, the regulatory landscape is in a state of flux—with important changes on the horizon. Each newsletter we bring you a rundown of key developments for the consumer products industry from each of the three main regulatory agencies, as well as the NAD.

CPSC

  • CPSC announced on September 7 that it has approved a new federal mandatory safety standard for infant bouncer seats. The standard seeks to improve stability to address tip-over incidents and for the battery compartment to address incidents involving battery leakage, corrosion, and overheating. The new standard is based on the existing voluntary standard, ASTM F-2167-17. This standard has been promulgated pursuant to Section 104 of the Consumer Product Safety Improvement Act of 2008, which requires the Commission to implement safety standards for durable infant and toddler products.
  • CPSC announced on August 30 that Home Depot U.S.A., Inc. has entered into a settlement agreement with the agency to resolve allegations that the retailer knowingly sold and distributed recalled consumer products over a four year period. The Company has agreed to pay a civil penalty of $5.7 million and enhance its compliance program. This penalty is significant because it involves claims against a retailer who allegedly sold recalled products in violation of Section 19(a)(2)(B) of the Consumer Product Safety Act which makes it unlawful to sell a recalled product – and not the more typical “failure to timely report” claims against a manufacturer under Section 19(a)(4).
  • On August 29, CPSC voted unanimously to remove seven plastics from the requirement to conduct independent third party testing for compliance with the mandatory phthalates prohibitions of children’s toys and child care articles.

FDA

  • FDA has approved its first biosimilar (Mvasi) for the treatment of cancer. Mvasi is approved for the treatment of adult patients with certain colorectal, lung, brain, kidney and cervical cancers.
  • On September 7, FDA announced that it will allow companies to state on product labels that some baby foods can prevent peanut allergies. The new claim will state: “for most infants with severe eczema and/or egg allergy who are already eating solid foods, introducing foods containing ground peanuts between 4 and 10 months of age and continuing consumption may reduce the risk of developing peanut allergy by 5 years of age.” This is the first time the FDA has recognized a qualified health claim to prevent a food allergy.
  • FDA has made available the first gene therapy in the U.S. The FDA approved Kymriah for certain pediatric and young adult patients with a form of acute lymphoblastic leukemia.
  • FDA announced a new strategic initiative to discourage the use of e-cigarettes and other electronic nicotine delivery systems by kids. The agency plans to expand its “The Real Cost” public education campaign to include messaging about the dangers of these products.

FTC

  • On July 25, Acting Chairman Maureen Ohlhausen released a summary of the agency’s major accomplishments since January. The highlighted accomplishments are in the areas of competition, consumer protection, data security and privacy, economic liberty, regulatory reform, small business, and military consumers.
  • On July 25, Acting Chairman Ohlhausen announced the appointment of Bruce Hoffman to be the Acting Director of the FTC’s Bureau of Competition. One week earlier, Ohlhausen had announced the departure of Ginger Zhe Jin, the FTC Bureau of Economics Director. Acting Chairman Ohlhausen named Michael Vita, Acting Director of the Bureau.
  • The Commission announced on July 21 that it will publish a series of blog posts to help businesses ensure that they are taking reasonable steps to protect and secure consumer data. The blog posts will use hypothetical examples based on lessons from closed investigations, enforcement actions, and questions from industry. The Commission is calling this its “Stick with Security” initiative. Its first blog post entitled “Insight into FTC Investigations” can be found here.
  • On August 15, the Commission announced that it had reached a settlement with Uber Technologies, Inc. over allegations that the ride-sharing company deceived consumers by failing to monitor employee access to consumer personal information and by failing to reasonably secure sensitive consumer data stored in the cloud. As part of the settlement, Uber has agreed to implement a robust privacy program and obtain regular, independent audits.

NAD

  • On August 1, the Advertising Self-Regulatory Council (ASRC) and Council of Better Business Bureaus (CBBB) announced that Laura Brett has been appointed as director of the National Advertising Division (NAD). Ms. Brett has served as Acting Director of NAD since Andrea Levine, former Director of NAD, retired after 20 years as NAD Director.
  • Additionally, on August 24, the ASRC and CBBB announced the appointment of Dona Fraser as Director of the Children’s Advertising Review Unit (CARU). Ms. Fraser is a privacy expert who previously worked for the Entertainment Software Rating Board (ESRB), a self-regulatory program developed by the video game industry.
  • NAD has recommended that Benefit Cosmetics discontinue promoting the company’s “they’re Real! Mascara” with the advertising claims “#1 best-selling’ Prestige Mascara in the U.S.” and “#1 best-selling Prestige Mascara in the U.S. for 3 years.”