Tag Archives: consumer protection

The Hidden Preemption Defense: What You Should Know

The most recent talc verdicts have demonstrated some traction in defeating claims based on certain go-to defense strategies, including personal jurisdiction dismissals, the use of expert testimony and Daubert motions discrediting scientific causation, and even requests to jurors to use their “common sense” in evaluating scientific evidence. However, there is another tool that defense attorneys should consider in talc cases: federal preemption.

Part of the mass appeal of talc cases lies in the prevalence of talc-based products in the marketplace, due to the numerous uses for talc in a variety of consumer products across cosmetics, over-the-counter (OTC) drugs, and even foods. As talc litigation expands into products that may be regulated as OTC drugs, defense counsel should consider the options that they might have in invoking federal preemption as a defense strategy. While the defense remains untested, there is a sound basis for its application. This article will discuss the federal U.S. Food and Drug Administration (FDA) regulatory scheme that is applicable to talc-based products and when federal preemption may support an argument for defeating conflicting state law claims against talc-containing OTC drugs.

To read the full text of this article by Duane Morris attorneys Anne A. Gruner and
Nicholas M. Centrella, Jr., please visit the Duane Morris website.

Risks Of Promoting Products As “Safe” For Pregnant Women

Conducting an online search for “things to avoid while pregnant” will bring back over 100 million hits, advising pregnant women to avoid, among other things, alcohol, caffeine, turkey sandwiches, certain hair dyes and “looking up ‘things to avoid while pregnant.’”

But increasingly, moms-to-be have been given reason to potentially avoid items as unexpected and as varied as shampoo, lipstick, nail polish, moisturizers, fragrances, deodorants and styling products, because of chemicals commonly found in these products that have been linked to potential gestational or developmental harm in unborn children.

Lacking conclusory information about the potential effects of these ingredients, industry participants are left to navigate the risks of promoting and/or labeling their products as safe for pregnant women. Meanwhile, consumers — primarily women, who control an estimated 85 percent of household purchases, and wield in excess of $5 trillion in purchasing power annually — are increasingly concerned about their ability to make informed decisions affecting their reproductive health, as well as the lives of their children. Consequently, these concerns are driving major changes in personal care spending, and creating new risks and opportunities for industry participants.

To read the full text of this article by Duane Morris attorney Kelly Bonner, please visit the Duane Morris website.

Counterfeit Cosmetics: Fake Beauty, Real Danger

On Jan. 30, the U.S. Government Accountability Office issued a report on the threat of counterfeit products to consumers.[1] Among other things, the report highlighted the prevalence of counterfeit cosmetics on popular e-commerce websites such as Amazon.com Inc. and eBay Inc., noting that 13 out of 13 samples purchased from third-party sellers with exceptional approval ratings were fake.[2]

In the age of e-commerce, counterfeit cosmetics present a growing challenge — not only do they pose significant health risks to consumers, but they raise serious legal concerns for brand manufacturers, distributors and retailers.

A Growing Problem

It is no secret that personal care is big business. According to a report commissioned by the Personal Care Products Council and prepared by PricewaterhouseCoopers, the U.S. personal care industry — which encompasses color cosmetics, perfumes, moisturizers, shampoos, hair color and deodorants — was alone responsible for $236.9 billion in gross domestic product in 2013.[3]

As of January 2018, individual spending on personal care products was forecast to grow at an annual compounded rate of four percent between 2018 and 2022.[4] Yet, as cosmetics sales have steadily increased, so too have sales of counterfeit cosmetics.[5]

To read the full text of this article by Duane Morris attorney Kelly Bonner, please visit the Duane Morris website.