Hunton Retail Law Resource

The FTC recently updated its “Made in USA” business guidance (see our prior reporting on the agency’s finalizing its “Made in USA” Labeling Rule). The updated business guidance reiterates the longstanding “all or virtually all” standard and explains that companies have an ongoing obligation to review their Made in USA claims in marketing materials, both to comply with the Made in USA Labeling Rule (for claims made on product labels) and with the FTC’s Made in USA Policy Statement (for claims generally). The FTC also applies the “Made in USA” standards to domestic origin statements like “Manufactured in USA,” “Built in USA,” “USA,” “true American quality,” and “Our products are American-made.” The staff provides new examples in the guidance to help businesses understand what kinds of Made in USA claims are covered.

In March 2024, Washington State became the first-in-the-nation to pass an almost complete ban on the manufacture and sale of cookware containing lead. Starting in January 2026, HB 1551 sets the maximum lead content level for cookware and cookware components at five (5) parts per million (ppm). The law is both broad in scope and stringent in its lead limit, making it important for entities that sell cookware or offer cookware for sale in the state of Washington to begin thinking about compliance now.

On June 17, 2024, the U.S. Supreme Court agreed to take up a wage and hour case, E.M.D. Sales, Inc. v. Carrera, to address a circuit split regarding the standard of proof that employers must satisfy to show that employees are exempt from the minimum wage and overtime requirements under the Fair Labor Standards Act (“FLSA”).

On June 27, 2024, the United States Supreme Court issued its decision in Harrington v. Purdue Pharma LP, addressing the question of whether a company can use bankruptcy to resolve the liability of non-debtor third parties.  The Supreme Court, in a 5-4 decision, held that the bankruptcy code does not authorize a release and an injunction that, as part of a plan of reorganization under Chapter 11, effectively seek to discharge the claims against a nondebtor without the consent of the affected claimants.

What if courts used artificial intelligence (AI) to determine the plain meaning of undefined terms, including terms in insurance policies? Eleventh Circuit Judge Newsom ponders that very question in his concurring opinion in Snell v. United Specialty Insurance Company, decided May 28, 2024. In a recent Hunton Insurance Recovery Blog post discussing the intersection of AI and insurance, insurance coverage partner Michael S. Levine and associate Alex D. Pappas unpack Judge Newsom’s concurring opinion. In doing so, they not only discuss the pros and cons of using AI to discern the plain meaning of certain words and phrases, but they discuss whether AI can answer a vexing question on the minds of insurers and policyholders alike: what is AI and how should it be defined?

The FTC is once again taking issue with hidden fees, suing Adobe, Inc., alleging the company and two corporate executives deceived consumers by hiding the early termination fee for a popular subscription plan and making it difficult for consumers to cancel their subscriptions.

The Children’s Advertising Review Unit (CARU) of BBB National Programs announced an investigation into the popular kids YouTube channel “Vlad and Niki,” owned by Content Media Group FZC, LLC (CMG), which produces videos under various licensing and merchandising agreements. Because these agreements obligate CMG to produce the videos and allow CMG to share in generated revenue, CARU considers CMG an endorser of the products in Vlad and Niki videos and subject to CARU’s Self-Regulatory Guidelines for Children’s Advertising.

On May 2, 2024, the Federal Circuit issued a decision ruling that initiation of an e-commerce website’s procedure to evaluate patent infringement claims subjects the initiating party to personal jurisdiction in the alleged infringer’s home state. Retailers and consumer products companies may wish to consider the possibility of ending up in federal court in a non-preferred venue prior to using one of these programs.

On May 9, 2024, the First Circuit became the first federal appellate court to address whether national retail websites’ use of session replay code creates specific personal jurisdiction for wiretapping claims allowing website users to hale retailers into court in any state where they visited these websites. The First Circuit concluded that it does not. It held that a website user failed to demonstrate that Ohio-based Bloomingdales.com intentionally targeted its website and its accompanying use of session replay software at users in Massachusetts and, therefore, failed to establish specific personal jurisdiction over Bloomingdales.com for alleged violations of the Massachusetts Wiretapping Act and Massachusetts Invasion of Privacy Statute. Rosenthal v. Bloomingdales.com, LLC, No. 23-1683, 2024 WL 2074685 (1st Cir. May 9, 2024). 

The Children’s Advertising Review Unit (CARU) of BBB National Programs issued a new compliance warning aimed at addressing the use of artificial intelligence (AI) in advertisements and data collection efforts targeted at children. The warning emphasizes that CARU will “strictly enforce” its Advertising and Privacy Guidelines for advertisers, brands, influencers and manufacturers that utilize AI in marketing and data collection involving children. The warning specifically highlights CARU’s concerns about the risks of AI in connection with the susceptibility of children to marketing that fails to distinguish between what is real and what is not.