In Loper Bright Enterprises v. Raimondo, No. 22-451 (U.S. June 28, 2024), the United States Supreme Court (Roberts, J.) held that the Administrative Procedure Act (APA) requires courts to independently determine whether an agency has acted within its authority. The Supreme Court’s decision marks a departure from the highly deferential relationship developed between courts and administrative agencies over the last forty years. By overruling the precedent set by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.[1] (“Chevron”), the Loper Bright decision has cleared the way for the judiciary to interpret ambiguous statutes with more autonomy than we…
Continue Reading Farewell, Chevron: Navigating Corporate Regulation Under Loper Bright

On June 18, 2024, California Governor Gavin Newsom, Senate President pro Tempore Mike McGuire and Assembly Speaker Robert Rivas announced a tentative deal to reform a number of aspects of California’s Private Attorneys General Act (PAGA). While legislation is yet to be introduced, the publicly announced key components of PAGA reform include an increase in employees’ share of PAGA penalties, caps on penalties for employers who take steps to comply with the Labor Code or fix potential issues after receiving notice of a PAGA claim, and requiring the representative plaintiff to experience every alleged PAGA violation to have standing. This reform, if…
Continue Reading PAGA Reimagined: A New Chapter for California’s Employers and Employees

An update to a Georgia law regulating high-volume third-party sellers on ecommerce platforms that takes effect July 1, 2024 has proved controversial for wrapping in not only sales “through” the platform but also sales made by “utilizing” it. This update to the law in Georgia comes a year after the federal INFORM Act took effect, 15 U.S.C. § 45f. The federal counterpart, like the Georgia law, regulates how ecommerce platforms must verify, collect, and disclose information on their high-volume third-party sellers. …
Continue Reading Georgia Online Marketplace Updates Prove Controversial

California’s Legislature has been busy, proposing a number of bills that may affect California food retailers and manufacturers, should they be signed into law. Some could become effective as early as July 2024. Below are the highlights of some of these bills.
Continue Reading New Bills Being Served Up That May Soon Impact Food Retailers and Manufacturers

Retailers may be getting overwhelmed by the number of states that have enacted “comprehensive” privacy laws, and with good reason. At this point, there are privacy laws in 12 states, with one more (Delaware) likely to be signed by the governor soon. Those laws are in California, Colorado, Connecticut, Florida, Indiana, Iowa, Montana, Oregon, Tennessee, Texas, Utah, and Virginia. (There is also a new law in Delaware currently pending the governor’s signature). We’ll be hosting a webinar on August 1 which you can sign up for here.
Continue Reading State Privacy Law Roundup: What Retailers Need to Know

The Federal Trade Commission’s (“FTC”) Endorsement Guides have evolved over the past forty years from regulating celebrity endorsements and testimonial advertisements to policing social media advertising, including influencer endorsements and native advertising. On February 12, 2020, the FTC announced that it had voted 5‑0 to approve a proposed Federal Register Notice, seeking comment on whether to make changes to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (“the Endorsement Guides”), which were enacted in 1980[1] and amended in 2009,[2] as part of a systematic review of all current FTC rules and practices. The Endorsement Guides have steadfastly required…
Continue Reading FTC Finalizes Revisions to the Endorsement Guides, Proposes New Rule for Consumer Reviews and Testimonials and Updates FTC Staff Guidance

Two plaintiffs learned the hard way that not all environmental marketing claims are treated the same. A federal judge in Missouri recently dismissed a proposed class action by the shoppers against H&M over the company’s marketing of its “Conscious Choice” fashion line.
Continue Reading Lizama et al. v. H&M: A Lesson in Artful Crafting of Green Claims

Candy and sports drink aisles in California grocery stores could look very different if AB418 is passed into law. The California Assembly has proposed amending the state’s Health and Safety Code to prevent the manufacture, sale, delivery, distribution, holding, or offering for sale any food that contains any of the following substances:…
Continue Reading New California Bill Seeks to Eliminate Certain Food Additives

Retailers continue to be targeted by website accessibility lawsuits. Unfortunately, the legal landscape remains unpredictable and it varies greatly based on what jurisdiction a retailer is sued in. There remains no easy fix to prevent litigation. Plaintiff’s lawyers argue that “inaccessible” websites or mobile apps fail to comply with the Americans With Disabilities Act or similar state civil rights laws. However, there are no set of detailed website accessibility standards or regulations and instead, the Department of Justice’s position has been that the Americans with Disabilities Act’s general nondiscrimination and effective communication provisions apply to web accessibility. The Department has directed that businesses…
Continue Reading Website Accessibility Litigation Continues to be Costly and There is No Easy Fix

Effective January 1, 2025, a new California law will prohibit 24 ingredients from use in cosmetic products. California’s Toxic-Free Cosmetics Act [Assembly Bill (“AB”) 2762] was signed into law by Governor Gavin Newsom on September 30, 2020, amidst continued public health concerns about chemicals in consumer products. The law makes California the first state to effectuate a state-wide ban of these ingredients, all of which are already banned by the European Union.
Continue Reading California’s Toxic-Free Cosmetics Act Bans 24 Ingredients From Cosmetic Products

In 2021 and 2022, we saw a wave of pay transparency laws aimed at improving pay equity. It first started with Colorado in 2021, then New York City in late 2022. Recently, states such as California, New York, Washington, and Rhode Island have passed similar pay transparency laws. These laws often differ by locality and state, creating many compliance questions for employers.
Continue Reading The Push for Pay Transparency: New Laws in 2023

On January 5, 2023, the Federal Trade Commission (“FTC”) unveiled a proposed ruling that would essentially ban noncompete agreements across the country. This proposed ruling is based on a finding that noncompete agreements constitute an unfair method of competition and violate Section 5 of the Federal Trade Commission Act.
Continue Reading Non-Compete No More? FTC Proposes Broad Ban of Non-Compete Agreements

California Attorney General Rob Bonta recently announced a new privacy investigative sweep. The AG is sending letters to businesses with mobile apps that have failed to follow the California Consumer Privacy Act (CCPA).
Continue Reading Brush Up On Your Opt-Outs: Calif. AG Signals Mobile App Investigative Sweep