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California Adopts New Prop. 65 Warning Regulations

California Adopts New Prop. 65 Warning Regulations

September 7, 2016

Authored by: Bryan Cave, Merrit Jones and Marcy Bergman

California’s Office of Environmental Health Hazard Assessment (OEHHA) has adopted new Proposition 65 warning regulations.  The new regulations will take effect in two years, on August 30, 2018.  In the interim, businesses may choose to comply with either the current or new regulations.

Prop. 65 prohibits businesses from knowingly and intentionally exposing California consumers to a chemical known to the state of California to cause cancer or reproductive harm without first providing a “clear and reasonable warning.”  As we reported on a draft of the regulations in April 2016, the new regulations substantially change what constitutes a clear and reasonable warning.

Products with label warnings manufactured prior to the effective date of the new regulations would continue to receive protection from liability. Parties to existing settlement agreements or court-approved consent judgments also can continue to provide warnings that comply with those agreements or orders.

Regulations Seek to

Receipt With Credit Card Data Constitutes Sufficient Injury for Class Action to Proceed

A recent federal court ruling allows a class action lawsuit to proceed against luxury fashion retailer Jimmy Choo for violating the Fair and Accurate Credit Transactions Act of 2003 (FACTA).  This ruling, which will likely be appealed, has important implications for other consumer class action lawsuits against retailers.

Jimmy Choo was accused of violating FACTA by printing credit card expiration dates on customer receipts in Wood v. J Choo USA, Inc., S.D. Fla. Case No. 15-cv-81487.  Jimmy Choo argued that the plaintiff had no standing to sue because she was not damaged when the retailer printed her credit card expiration date on her receipt. The court disagreed, holding that the consumer was sufficiently damaged to maintain the action as soon as soon as the receipt was printed.

Companies facing lawsuits alleging FACTA violations should be aware that although the U.S. Supreme Court held in Spokeo Inc. v. Robins,

Gender-Based Price Discrimination: California Seeks to Extend Law to Prohibit Discrimination in Pricing of Gender-Specific Goods

California is taking on gender price discrimination. California law already prevents businesses from gender-based price discrimination for services such as haircuts, alterations, and dry cleaning.   A recently proposed bill (Senate Bill 899, Hueso) would extend that law to “retailers” and prohibit price discrimination in the sale of “goods.”

SB 899 recently passed out of the Senate Judiciary Committee, where several positive amendments were made after comments from the California Retailers Association and others.  One significant change from the original proposed legislation is elimination of a requirement that retailers post the prices of all goods so that consumers could determine if “men’s” and “women’s” products were priced the same.  The bill also removed food products from its broad scope.

The bill as amended states: “No business establishment . . . may discriminate, with respect to the price charged for goods of a substantially similar or like kind, against a person

ADA Website Accessibility Cases Continue to Grow

An increasing number of retailers are facing lawsuits or threats of lawsuits regarding website accessibility under the Americans With Disabilities Act (“ADA”), despite the fact that the ADA and its implementing regulations do not expressly address website accessibility.

The Department of Justice first announced in 2010 that it would issue formal regulations regarding website accessibility, but they now are not expected until 2018. In the meantime, the number of cases against retailers and others continue to mount, and judges show no propensity to dismiss or stay the cases while the DOJ works on its regulations.  Last month, a federal magistrate judge in a website accessibility case against Harvard University and the Massachusetts Institute of Technology rejected arguments that the court should dismiss or stay those cases pending issuance of the DOJ regulations.

Further, for what is believed to be the first time in any court, a California judge recently

Putative Class Action Lawsuit Filed against J. Brand Jeans over “Made in California, USA” Label

Plaintiffs in California continue to focus on labels. Recently, a putative class action lawsuit was filed against J Brand, Inc., the maker of designer J Brand jeans and other clothing. The complaint alleges that the label for J Brand jeans states they are “Made in California, USA,” but that more than 5% of the jeans consist of imported material. Specifically, the complaint alleges that the imported material used includes fabric, thread, buttons, subcomponents of the zipper assembly, and rivets.

The plaintiff’s claim against J Brand, Inc. is based on an alleged violation of California Business and Professions Code section 17533.7, which provides that it is unlawful to use “Made in U.S.A.,” or similar words if the product has been “entirely or substantially made, manufactured, or produced outside of the United States.”

There are two exceptions to the statute. First, a company may still use the “Made in U.S.A.” label if

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