The Consumer Product Safety Commission (the "CPSC") is currently accepting comments on its proposed rule interpreting the phrase "children's products." Manufacturers and distributors of finished products and components of products should review the full text of the proposed rule and submit comments if appropriate. The CPSC is particularly interested in comments on how manufacturers generally determine the age of the consumers for whom their products are primarily intended and what other criteria, if any, should be considered in determining whether a consumer product is a children's product. Comments are due by June 21, 2010.
In August 2008, then-president Bush signed into law the Consumer Product Safety Improvement Act of 2008 (the "CPSIA") to enhance the powers of the CPSC to protect American consumers from unsafe products. One of the fundamental purposes of the CPSIA is to regulate the manufacturing and distribution of children's products, which the CPSIA defines as "consumer product[s] designed or intended primarily for children 12 years of age or younger."
When a product is determined to be a children's product, it is subject to a strict set of rules and restrictions, including testing by a third-party facility, restrictions on acceptable levels of lead and phthalates, mandatory tracking labels, and required cautionary statements in advertising. These rules are different from those for general use products, which are subject to far less stringent controls. Manufacturers and distributors of products that could potentially be regulated under the CPSIA have expressed concern that the term "children's products" is not sufficiently clear. In response, the CPSC has proposed an interpretive rule to provide more specific guidance as to what products will be considered children's products. To that end, the proposed rule focuses on three things: (1) clarifying the definition of children's products, (2) expanding on the interpretive factors already provided by the rule, and (3) providing additional guidance through examples.
1. Designed or Intended Primarily: The proposed rule clarifies the phrase "designed or intended primarily for children 12 years of age or younger" to apply to consumer products designed or intended mainly for children 12 years old or younger. By way of illustration, the CPSC has focused on the product's appeal: products that may be used by 12-year-olds but that have a declining appeal for teenagers will likely be considered children's products. In contrast, if a product may be just as appealing for a child older than 12, or if potential consumers older than 12 are as likely or more likely to use the product, those products will not be considered children's products.
2. Clarification of Factors: The statutory definition of children' products specifies certain factors that are to be taken into consideration when making that determination. The proposed rule aims to clarify and expand on those factors, as well as to clarify the definition of the phrase "for use," which the CPSC interprets "to generally mean that children will physically interact with such products based on the reasonably foreseeable use and misuse of such product."
Jonathan Handler and David Lieberman wrote an article, "Citizenship of LLCs and Subject Matter Jurisdiction in the Federal Courts: A Serious Concern Begging for Resolution," for Bloomberg BNA's Securities Regulation & Law Report. The article is about how many practitioners fail to understand a key legal distinction between LLCs and corporations as it relates to their state of citizenship.
John Cerreta wrote an article, "Design Defects at the Connecticut Supreme Court: A Doctrine in Flux," for The Connecticut Law Tribune.
Paul D. Williams and Jennifer Shukla updated the Q&A guide "Initial Civil Appeals: Connecticut" for Practical Law. This Q&A addresses starting an appeal (as of right or by permission), obtaining a stay pending appeal, completing preliminary requirements (like mediation), submitting a factual record or appendix, briefing the appeal, arguing the appeal and requesting rehearing.
Jim Rotondo and Jennifer Shukla wrote an article, "Conn. High Court Modifies Design Defect Standards," for Law360. The article is about the significance of the decision in Izzarelli v. R.J. Reynolds Tobacco Co., 321 Conn. 172 (2016) (officially released May 3, 2016) nicknamed by the media as the "Good Tobacco" litigation. With the decision, the Connecticut Supreme Court altered the legal landscape in Connecticut for design defect product liability claims. The authors describe the case as "Connecticut Supreme Court’s attempt at finding a middle ground in a national debate about the best standard to use in design defect product liability cases." The plaintiff sued R.J Reynolds for allegedly intentionally manipulating the additives and nicotine content in its Salem brand of cigarettes to make the cigarettes more addictive and consequently more carcinogenic and won the first trial. The case established that the modified consumer expectations test, which involves balancing several risk and utility factors and will generally require expert evidence, is the default and primary standard for design defect cases in Connecticut. The case fits squarely within a national trend of moving away from the ordinary consumer expectations test in design defect cases.
Day Pitney Alert
Michael Furey was quoted in an article, "NJ Panel Grills Hospitals Over Discovery In Horizon Row," in Law360. Day Pitney is representing five New Jersey hospitals in a lawsuit against Horizon Healthcare, relating to its new, multi-tiered health plan called OMNIA. Furey advocated on behalf of the five hospitals on Wednesday before a New Jersey appeals court that Horizon should turn over a consultant's report and certain agreements relating to how Horizon categorized hospitals under its controversial OMNIA Alliance program and the impact of OMNIA on the hospitals. These Tier 2 hospitals are alleging various claims, including breach of contract and citing concerns that being ranked in the lower tier of the program will cost them business. Horizon contends the sought-after materials, including a financial analysis, strategic alliance agreements and rate agreements between the insurer and OMNIA network hospitals, contain trade secret and confidential information. "If we're going to prove our hospitals should be Tier 1 alliance members, we need the documents and the information," Furey said.
Ernie Mattei was recently re-elected to the Connecticut Bar Association's House of Delegates, the primary decision making and policy making body of the CBA, for a third term. In his role, Ernie will address recommendations to the judges with respect to amendments to the Code of Professional Responsibility, recommendations regarding the organization of the courts, and any changes to the Connecticut Practice Book. Mattei has been involved in the CBA for over 35 years, and is also a member of the Executive Committees of the CBA’s Insurance Litigation and Litigation Sections.
Boston, Mass., January 20, 2016 – Day Pitney is pleased to announce Jillian Hirsch, a partner in Day Pitney’s Litigation Practice, has been selected as one of Massachusetts Lawyers Weekly’s 2015 Lawyers of the Year. Honorees were nominated by their colleagues, clients and other legal professionals for their outstanding professional accomplishments.
Jonathan Handler was quoted in an article, "Injunction Secures Internet Access for Nonprofits" in the Fairfield County Business Journal. In the article, Handler describes the ongoing effort by Day Pitney to prevent Sprint Corporation from shutting off broadband access to more than 300,000 low-income and disadvantaged users plus schools, libraries, and other non-profits across the country. The Massachusetts Superior Court granted a 90-day preliminary injunction requiring Sprint to continue to provide broadband service, among other pre-judgment relief. Handler states "there is a notion out there that we're all out there at high speed. But large portions of the population, for financial reasons, are not." Those who rely on the services of the nonprofits the firm represents would be at "a real disadvantage" if broadband does not remain available.
Day Pitney was mentioned in Law360 as one of 100 U.S.-based firms that have the most Environmental partners, the most Product Liability partners, M&A partners, Labor & Employment partners, Competition partners and the most Insurance partners globally. Law360 collected data from nearly 300 law firms about their partner head counts in various practice areas.