Insights on Consumer Products

Earlier this week, the owners of the egg distribution firm, Quality Egg, LLC (Quality Egg), were sentenced to three months in prison, given one year of supervised probation, and required to each pay a $100,000 fine after pleading guilty to selling eggs in 2010 that were contaminated with salmonella.

Last week, 14 state attorneys general sent a letter to Congress requesting that it investigate the herbal supplements industry, as well as consider giving the US Food and Drug Administration (FDA) stronger oversight authority over the marketing of such products in the US.

In a recent non-precedential decision, the Trademark Trial and Appeal Board ruled that the fast food chain Del Taco, Inc. (Del Taco) no longer enjoys trademark rights in the NAUGLES brand associated with Naugles, Inc., a California-based fast food chain that Del Taco acquired in the late-1980s.

The US Food and Drug Administration recently sent a Warning Letter to Skin Authority, LLC, due to marketing claims used by the company to promote its personal care products.

In 2013, David and Katina Spade purchased a mattress from Select Comfort Corp. (doing business as Sleep Number) that featured remote control operation of the height of the foot and head portions of the mattress.

In a precedential ruling, TTAB held that SMART BALANCE for frozen foods was not likely to be confused with SMART ONES for frozen foods in light of the weakness of the common term “SMART,” the differences in the marks, the 17-year peaceful co-existence of the parties’ marks, and more.

On March 24, 2015, the Supreme Court issued its much anticipated second trademark decision of the term, holding that US Trademark Trial and Appeal Board (TTAB) decisions concerning likelihood of confusion generally have preclusive effects in federal court.

In the non-precedential ruling, the Trademark Trial and Appeal Board (TTAB or Board) found that the marks “MASQUERADE” and “MASCARADE” are likely to be confused for different alcoholic beverages. In re 8 Vini, Inc., Serial No. 85857391 (January 16, 2015) [not precedential].

A recent ruling in California US District Court will severely curtail the ability of plaintiffs to bring tort actions based on exposure to chemicals listed under California’s Proposition 65 (Prop 65) as chemicals known to cause cancer or birth defects.

The alleged descendants of Aunt Jemima (a.k.a. Anna Short Harrington) do not have a valid claim to the great syrup fortune of Pepsi and Quaker Oats, according to a recent ruling by the US District Court for the Northern District of Illinois.

In a recent decision, the Federal Circuit clarified the “use in commerce” requirement for trademark applications filed in connection with the provision of a service.

The stakeholder engagement process supporting the Obama Administration’s plans to develop a National Action Plan on Responsible Business Conduct (NAP) is well underway. Two stakeholder meetings have already occurred in New York City and Berkeley, California.

The Supreme Court of the United States declined to review the decision of the United States Court of Appeals for the Fourth Circuit in Jaffé v. Samsung Electronics Co.[2], leaving undisturbed the Fourth Circuit’s holding.

Based on recent votes in Congress, the possibility of a partial shutdown of Department of Homeland Security (DHS) activities for at least a brief period of time is looming larger. On February 27, 2015, Congress extended DHS funding for one week.

The Federal Trade Commission announced this week that it settled with two marketers of mobile medical apps — New Consumer Solutions LLC and Health Discovery Corp. — for claiming that their MMAs (Mole Detective and MelApp, respectively) could diagnose melanoma from photographs of the users’ moles.

Alstom SA’s release today from World Bank sanctions ensures that the US Department of Justice (DOJ) will not impose an independent corporate monitor under its recent settlement with the company.

March 1 is fast approaching. It is the deadline for consumer and commercial product companies to complete an electronic submission to the California Air Resources Board’s (CARB) “2013 Consumer and Commercial Products Survey” (Survey).

The Federal Trade Commission (FTC) recently clarified that its jurisdiction under the Children’s Online Privacy Protection Act (COPPA) does not extend to information collected by state governments or most nonprofits in connection with online educational testing.

The US National Contact Point recently issued a Final Statement regarding complaints by two international labor unions that Nissan Motor Co., Ltd. and Nissan North America, Inc. (Nissan) engaged in conduct inconsistent with the OECD Guidelines for Multinational Enterprises (OECD Guidelines).

On February 10, 2015, in this most recent win for the federal enforcement agency, the US Court of Appeals for the Ninth Circuit affirmed the FTC’s injunction against St. Luke’s Health System and a large physician group in Idaho.

On January 28, 2015, Sen. Richard Durbin (D-IL) and Rep. Rosa DeLauro (D-CT) introduced respective companion food safety legislation in the Senate (S.287, the “Safe Food Act of 2015”) and House (HR.609).

The long-awaited final Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) provisions modifying the Human Trafficking regulations were published on January 29, 2015.

The US Food and Drug Administration (FDA) recently issued a draft guidance entitled “Transfer of a Premarket Notification (510(k)) Clearance — Questions and Answers — Draft Guidance for Industry and Food and Drug Administration Staff.”

Focus Education, LLC, a leading provider in the growing market for cognitive improvement products, recently settled with the Federal Trade Commission (FTC) over charges that it was misleading consumers through the use of deceptive advertising tactics.

The US Food and Drug Administration (FDA) recently issued a draft guidance document announcing that it does not intend to regulate low-risk products intended for general wellness only as medical devices.