Duane Morris Products Liability

November 6, 2024November 6, 2024 by Duane Morris

How Spas Should Promote Intimate Health and Wellness Products and Treatments

The global market for intimate wellness products is expected to grow to $81.4 billion by 2028, up from $51.9 billion in 2021, according to recent market research reports. Once taboo, or the topic of hush-hush conversations, intimate wellness brands are increasingly crossing over into mainstream wellness marketing, collaborating with well-known fashion and beauty brands and major retailers, expanding concepts of self-care for Gen Z consumers who are more inclusive and willing to explore individual concepts of pleasure.

To read the full article by Duane Morris associate Kelly Bonner, please visit the WellSpa360 website (registration required).

September 4, 2024 by Duane Morris

Third Circuit Roundup Ruling Splits with Ninth and Eleventh Over Pesticide Product Labeling Preemption Issue

On August 15, 2024, the United States Court of Appeals for the Third Circuit held in Schaffner v. Monsanto that the plaintiff’s Pennsylvania state-law claims, which asserted that Monsanto failed to warn about alleged cancer risks presented by glyphosate (the active ingredient in the weed killer Roundup), were expressly preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). In so holding, the Third Circuit disagreed with earlier decisions issued by the Ninth Circuit (Hardeman v. Monsanto) and the Eleventh Circuit (Carson v. Monsanto), both of which held that FIFRA did not preempt state failure-to-warn claims regarding glyphosate product labeling. This circuit split makes it more likely that the Supreme Court of the United States will ultimately take up the issue―and its eventual ruling will have significant implications on the scope of FIFRA preemption nationwide.

Read the full Alert on the Duane Morris LLP website.

August 5, 2024 by Duane Morris

CPSC Finds Amazon Liable for “Fulfilled by Amazon” Products

The U.S. Consumer Product Safety Commission (CPSC) recently found Amazon to be a “distributor” with product liability responsibility for products sold on its website. In a July 29, 2024, ruling, the CPSC said Amazon is legally responsible for over 400,000 allegedly hazardous items sold by third-party sellers on its site. Amazon.com, Inc., CPSC Dkt. No. 21-2 (July 29, 2024). This decision and order adopted many, but not all, of the determinations made by an administrative law judge during an administrative proceeding in 2023, highlighting public safety as paramount. Read the full Alert on the Duane Morris website.

July 22, 2024 by Duane Morris

Regulations for Automatic Emergency Braking Technologies Delayed by NHTSA and FMCSA

By Jim Steigerwald, Harry Byrne, and Ryan Monahan

The potential for rulemaking in 2024 from the National Highway Traffic Safety Administration (NHTSA) and the Federal Motor Carrier Safety Administration (FMCSA) has been deferred to 2025 at the earliest, including on key state-of-the-art technologies such as automatic emergency braking (AEB) in heavy and medium-duty trucks. The NHTSA and FMCSA intended initially to publish a final rule to require and/or standardize equipment performance for AEBs on trucks with a gross vehicle weight rating of more than 10,000 pounds by April 2024. That has now been pushed to January 2025, at the earliest. The delay is despite the fact that the Notice of Proposed Rulemaking comment period ended nearly two years ago, in September 2023.

Bottom line: Manufacturers, fleet operators, and commercial vehicle owners have faced increasing products liability litigation in recent years for alleged negligence in “failing to equip” vehicles with AEBs. The recent deferral shows that significant rule making regarding advanced automatic technologies in heavy vehicles will remain ongoing as the government continues to study the technology and evaluate a potential mandate in heavy and medium-duty trucks. While commercial vehicle manufacturers continue to develop and innovate in this space, the NHTSA and FMCSA continue to take a hands-off approach and have still yet to mandate this technology in heavy and medium-duty trucks.

July 2, 2024 by Duane Morris

Plan Ahead to Protect Your Innovation: Product Liability Risks for Medtech Startups

A medtech startup typically focuses on two key legal needs: (1) ensuring that its technology has proper and thorough intellectual property protection, and (2) outlining a detailed pathway for FDA clearance. Those two priorities are understandable. The areas of intellectual property protection and a regulatory pathway are threshold issues that every potential investor wants addressed before funding a company. The hypothetical risk of future product liability litigation is not as high a priority for startup companies who have yet to commercialize. However, with the recent surge in such litigation pursuing the life sciences industry, companies are on notice to start prioritizing product liability risk management.

Read the MD+DI article by Sean Burke, vice chair of Duane Morris’ Products Liability and Toxic Torts division.

June 26, 2024June 27, 2024 by Duane Morris

The Latest Changes to the Beauty Regulatory Landscape

Duane Morris attorney Kelly Bonner was quoted in an article in WWD on June 25, 2024.

“A big deadline in the beauty and personal care regulatory landscape is fast approaching, with much more to come — although some experts believe this still isn’t enough.

Under the Modernization of Cosmetics Regulation Act, or MoCRA, passed by Congress at the end of 2022, cosmetics companies across the U.S. are required to register their facilities to the Food and Drug Administration by Monday, pushed back from the original deadline of December. They must also list each marketed cosmetic product, including product ingredients, and provide any updates annually. […]

As for what else is still to come, the industry is awaiting the FDA to issue guidance on good manufacturing practices, set to be published in 2025.

On this, Kelly A. Bonner, an associate at law firm Duane Morris, said: “They’re not reinventing the wheel. There are standards out there. It’s just going to be what the FDA say is the standard in the United States.” […]

Bonner, for one, believes the industry has been taking the changes seriously and that the goal for the FDA is to get through the first few years of MoCRA and then take stock.

“Ultimately FDA is going to take a hard look at it and think, ‘OK, what are our enforcement priorities now that we have the data, now that we’ve got everything in place? How do we tweak this? How do we refine this to better assist the industry, to better aid consumers?’”

To read the full text of this article, please visit the WWD website

June 12, 2024June 12, 2024 by Duane Morris

Updated Federal Rules Can Improve Product Liability MDLs

In the evolving universe of multidistrict litigation, begun in the antitrust cases against major electronics manufacturers in the 1960s, federal courts have developed varying approaches to fulfilling their responsibilities to achieve efficiency and reduce costs. This process continues today almost 60 years since the creation of the first MDL. Read the Law360 article by Alan Klein and William R. Heaston on the Duane Morris website.

April 16, 2024 by Duane Morris

FDA Again Confirms No Asbestos in Cosmetic Talc Products

On April 5, 2024, the U.S. Food and Drug Administration (FDA) confirmed that its third-party testing of cosmetic talc products for 2023 identified no traces of asbestos in any of the 50 cosmetic samples tested. FDA’s 2023 results, which were reported in a Cosmetics Constituent Update, are consistent with its testing for 2022 and 2021, which also failed to detect asbestos in any of the 50 cosmetic samples tested for those years. Read the full Alert on Duane Morris’ website.

January 12, 2024 by Duane Morris

Court’s Decision Affects Evidence Involving Industry & Gov’t Standards

By Alan Klein, Duane Morris LLP

A recent Pennsylvania Supreme Court decision has reaffirmed the applicability of strict liability standards under Restatement Second’s §402(a) in products liability cases filed in the State, and has barred evidence of compliance with industry or governmental standards to demonstrate that a product was safe and not defective. While clarifying these issues for trial courts and litigants, the Court’s plurality decision creates a potential unbalanced playing field for defendant manufacturers relying upon such standards in the design of their products.

Continue reading “Court’s Decision Affects Evidence Involving Industry & Gov’t Standards”

December 6, 2023 by Duane Morris

Pa. Supreme Court Rules on Proper Venue Standards

By Alan Klein and Ethan Feldman

In Hangey v. Husqvarna, the Pennsylvania Supreme Court recently ruled that the percentage of a corporate defendant’s total revenue generated from a forum county alone is insufficient to support the proposition that a defendant does not “regularly conduct business” in the county when analyzing whether a lawsuit’s venue is proper. This long awaited decision provides much needed clarity for trial courts that previously wrestled with the question of how much business must a defendant have in the forum for venue to attach. Continue reading “Pa. Supreme Court Rules on Proper Venue Standards”