With the prevalent spread of COVID-19, hand sanitizers have become this spring and summer’s “fidget spinners,” cycling through the process from market shortage to glut in short order. With such a rush to meet the drastic spike in demand, product missteps seem inevitable. Although the Recall Roundup generally focuses on recalls under CPSC jurisdiction, the numerous FDA recalls involving hand sanitizers merits mention here. Since June 27, 2020, there have been 15 recalls noted on the FDA’s “Recalls, Market Withdrawals, & Safety Alerts” website. Retailers looking to meet market demand should keep an eye on this FDA web site relative to the hand sanitizers they may have stocked for sale.
Online Marketplaces May Be Required to Verify and Disclose Seller Information
On July 23, 2020, U.S. Congresswoman Jan Schakowsky introduced H.R.7756 to require online marketplaces to verify and disclose to consumers certain information regarding high-volume third-party sellers of consumer products. The goal of the bill is to combat the sale of stolen, counterfeit, and dangerous consumer products by requiring transparency of third-party sellers on online retail marketplaces.
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The Rise of the Dollar Store
Few other retail sectors have seen the expansion that dollar stores have in the past decade, not to mention in the chaotic first half of 2020. During a time when other retailers are struggling to stay afloat due to social distancing requirements and widespread economic uncertainty, dollar stores are continuing to increase their physical presence as well as their profits. Dollar stores tend to cluster in either rural areas where access to traditional grocery and retail stores is limited or in underserved urban communities that lack full-service grocery stores.
SEC Disclosure Issues for Publicly-Traded Retailers
The ongoing effects of the Covid-19 pandemic and other recent socio-political events will present a number of disclosure questions for publicly-traded retailers completing their second fiscal quarters.
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Is a Wave of PFAS Consumer Class Actions on the Horizon?
Two putative class actions recently filed in the Northern District of California—Ambrose v. Kroger Co. and Nguyen v. Amazon.com, Inc. —preview a new theory of consumer claims relating to per- and polyfluoroalkyl substances (PFAS). Rather than rely on alleged omissions or representations about health risks, the plaintiffs claim that they relied on marketing statements that indicated the products they purchased (“compostable” disposable dinnerware) were disposable and would completely degrade over time and that the presence of PFAS in the products means those marketing statements were false. That focus on the environmental persistence of PFAS, rather than the substances’ alleged health effects, marks a new approach to PFAS consumer class actions.
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The DOL’s New Rule Removes Presumption Against Overtime Exemption For Possible Retail And Service Establishments, Broadening Availability To Employers
On May 19, 2020, the US Department of Labor (DOL) issued its final rule likely expanding the FLSA’s Section 7(i) overtime exemption for commission-based workers in retail and service industries by withdrawing the long-standing, historical list of businesses that the DOL identified as falling within or outside of what it deemed to be a retail or service establishment.
Under the final rule, which was issued without notice and comment and takes effect immediately, the DOL removes the lists of business with “no retail concept” and that “may be recognized as retail” from the regulations. This means, that in order in doing so, business establishments that were excluded may now be considered as offering a retail product or service and qualify for the exemption.
Consumer Perception is Key to Registration of Generic “.com” Marks
In an 8-1 decision, the Supreme Court held in U.S. Patent and Trademark Office v. Booking.com that “generic.com” marks may be registered trademarks or service marks when consumers do not perceive them as generic.
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Can Trademark Law Combat Price Gouging? 3M is Testing Theories to Protect its Brand
3M Company (3M) is a leading manufacturer of N95 respirators. According to 3M, medical workers and public-health professionals consider 3M-branded N95 respirators to be “the gold standard.”
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Recall Roundup: June
At a June 16, 2020 hearing, the US Senate Committee on Commerce, Science and Transportation considered President Trump’s nomination of Nancy Beck to the CPSC. In March, Trump announced his nomination of Dr. Beck to be Chairman and Commissioner of the CPSC. The CPSC currently consists of two Republican appointees and two Democratic appointees with one of the Democratic appointees—Robert Adler—serving as Acting Chairman. This month’s committee hearing included tough questions from Democrats and Republicans about how Dr. Beck would prevent unauthorized releases of confidential business information held by CPSC – a problem that has plagued the agency recently. Dr. Beck was also quizzed about her prior experience as the Senior Director for Science Policy at the American Chemistry Council, which is a chemical industry lobbyist group. Senate Democrats have expressed opposition to Dr. Beck’s confirmation as well as one Senate Republican on the committee – Shelley Moore Capito (R-WV). If every Democrat on the committee plus Senator Capito oppose the nomination, then the committee’s vote count is at a 13-13 tie, signaling that the nomination may not proceed to a full Senate floor vote.
New Emergency Ordinance Requires San Francisco Employers to Guarantee Reemployment for Certain Employees Laid Off Due to COVID-19
Due to the novel coronavirus (COVID-19), many San Francisco businesses have closed in order to contain the spread of the pandemic, resulting in declining revenues and widespread business interruption. These economic conditions have led to employee layoffs across San Francisco. As San Francisco employers work to restore their business operations in the wake of COVID-19, they should be aware of new rules that may affect how they rebuild their workforce.