Insights

The Ninth Circuit ruled that NFTs are not just digital collectibles but legally recognized goods under the Lanham Act. Yuga Labs, Inc. v. Ryder Ripps and Jeremy Cahen, Case No. 24-879 (9th Cir. July 23, 2025). NFTs are intangible, fully virtual, authenticating software code that is associated with separate digital or physical content. Although the Ninth Circuit found that there were genuine issues of material fact that precluded summary judgment on the issue of likelihood of confusion, the court recognized that NFTs are commercial products with tangible value subject to trademark protection. This means that NFT creators and projects can now claim trademark rights in their collections’ names, logos, and associated marks.

A question often asked by consumer product companies these days is whether the eFiling requirements will go into effect as planned given the political upheaval at the U.S. Consumer Product Safety Commission (CPSC) and the dismissal of the three Democrat Commissioners. While that is an impossible question to answer with certainty, all signals suggest the requirements will be implemented on schedule for July 8, 2026.

In the last few months, both Washington State and Pennsylvania enacted significant legislation addressing the malicious use of deepfakes—artificial intelligence-generated or manipulated media. These new laws reflect a growing national and state-level trend to regulate AI-generated content, especially when used to harm individuals or mislead the public.

In an effort to update and modernize the FDA’s regulation of sunscreen, Representative John Joyce (R-Ohio) and a group of bipartisan members of Congress introduced in June the Supporting Accessible, Flexible, and Effective Sunscreen (SAFE) Standards Act.  If enacted, the bill would establish a more flexible regulatory scheme at the FDA, decrease the cost in the approval process and expand the array of sunscreen available for purchase.

On August 5, 2025, Royal Sovereign International Inc. (Royal Sovereign), a defunct New Jersey importer of portable air conditioners, pled guilty to one count of willfully violating the Consumer Product Safety Act (CPSA) for its failure to report dangerous defects in portable air conditioners that had been linked to multiple fires and one death. The company also agreed to a civil settlement with the Department of Justice and the Consumer Product Safety Commission (CPSC) that included $395,786.48 in restitution to victims and a $16,025,000 civil penalty, which was suspended to $100,000 for inability to pay.

The Southern District of New York issued a recent opinion in Lehrman et al v. Lovo, Inc., 1-24-cv-03770 (SDNY Jul. 10, 2025) (J. Paul Oetken) regarding copyright infringement issues involving artificial intelligence models, focusing this time on voice cloning. Two voice-over actors, Paul Lehrman and Linnea Sage, filed a lawsuit against Lovo, Inc., a company specializing in AI-driven text-to-speech services. The Plaintiffs alleged that Lovo used artificial intelligence to clone their voices without authorization, raising complex legal questions regarding intellectual property and privacy rights in the age of AI.

In May 2025, the Trump Administration, asserting Executive authority, terminated the three Democratic Commissioners of the Consumer Product Safety Commission. On June 13, 2025, a Maryland district court aborted the without-cause termination while a legal challenge proceeds, leaving the Commissioners in place.

On July 14, 2025, the FTC announced its enforcement action against telemedicine company NextMed over charges it used misleading prices, fake reviews and deceptive weight-loss claims to sell GLP-1 weight-loss drugs. The FTC has now settled its charges that NextMed used deceptive practices to lure consumers into buying their weight-loss membership programs that had hidden terms and conditions. With the rise of both authentic and counterfeit GLP-1s throughout the nation and the proliferation of the availability of GLP-1s from telemedicine/telehealth companies, online pharmacies and medspas, this announcement is a sign that the federal government will actively monitor these entities to ensure consumers are getting genuine, authentic GLP-1s, that consumers are making informed decisions about weight-loss drugs, and that consumers are not being deceived and duped in the frenzy over GLP-1s.

On July 8, 2025, the Eighth Circuit vacated the Federal Trade Commission’s (“FTC”) Negative Option Rule, also known as the Click-to-Cancel Rule, on procedural grounds. The Click-to-Cancel Rule, which provided a streamlined path for consumers to cancel subscription services in a few clicks of a mouse, was scheduled to take effect on July 14, 2025, but the Court found that the FTC had failed to follow mandatory procedural requirements.

Over the past several months, hundreds of businesses across California have been served with Notices of Violation (NOVs) of California’s Proposition 65 (“Prop 65”) for issuing thermal receipts at the register and using thermal labels and stickers in their stores. The targeted businesses include large and small retailers, restaurants, banks, gas stations, and grocers.

Section 230 of the Communications Decency Act of 1996 has been credited with “creating” the internet by immunizing websites and platforms from lawsuits arising from the content posted by third-party users. Specifically, an internet company is not liable for publishing or posting content drafted by another person under conventional common law tort theories such as defamation or slander, however loathsome, violent or otherwise hateful that content is.  At the same time, Section 230 also immunizes a website or platform that engages in good-faith moderation of content it deems to violate its terms of use/conditions or community standards. 

On May 13, 2025, the U.S. Environmental Protection Agency (EPA) published an interim final rule in the Federal Register to extend the deadline for manufacturers and importers of products containing perfluoroalkyl or polyfluoroalkyl substances (PFAS) to report to EPA on their past activities.

In a bipartisan show of support for American inventors and technological leadership, Senators Chris Coons (D-DE), Thom Tillis (R-NC), and Mazie Hirono (D-HI) and Representatives Kevin Kiley (R-CA) and Scott Peters (D-CA) held a press conference on Wednesday, May 1, 2025, to highlight growing momentum behind the Promoting and Respecting Economically Vital American Innovation Leadership Act (known as the PREVAIL Act) and the Patent Eligibility Restoration Act (known as the PERA Act).  

On April 21, 2025, the FTC filed an enforcement action against Uber alleging that Uber enrolled consumers in Uber One without proper consent, created substantial barriers to cancellation, and misrepresented the financial benefits of the subscription. The claims include violations of the FTC Act—which prohibits unfair and deceptive acts in commerce—and the Restore Online Shoppers’ Confidence Act (“ROSCA”)—which prohibits charging consumers for goods and services sold on the internet through a negative option (i.e., failing to cancel a subscription, unless the seller clearly discloses all material terms of the transaction before obtaining the consumer’s information and obtains the consumer’s expressed informed consent for the charges and provides simple mechanisms for the consumer to stop the recurring charges).

Two bills currently making their way through the California Legislature could, if passed, have far-reaching implications for how companies doing business in California price their goods and services. California Assembly Bill 325 (Aguiar-Curry) and Senate Bill 384 (Wahab), as drafted, seek broad prohibitions against the use, distribution of, and inputs into algorithmic pricing and supply software, even where there is no coordination among competitors on the use of such software or the setting of prices. Their enactment would reach every business that uses software applications to develop pricing, supply levels and other commercial terms in California. Crowell & Moring represents the California Chamber of Commerce (“CalChamber”) in monitoring, analyzing and responding to the proposed bills.

Looking back at 2024, manufacturers were extremely busy navigating a high number of recalled products and corresponding litigation. A number of these 2024 litigation and class action trends appear to be carrying over into 2025.

On April 14, 2025, ClassPass, a web-based company offering subscription services to third-party fitness classes, petitioned for rehearing en banc of the Ninth Circuit’s Chabolla v. ClassPass decision, which held that ClassPass’ users were not bound by the terms of ClassPass’ “sign-in wrap” agreement. The ruling has significant consequences for online companies using sign-in wrap agreements and for online contract formation and enforcement more generally. A sign-in wrap is a type of online agreement in which the agreement is hyperlinked on the website, but the user is not required to access, review, confirm an understanding, or otherwise affirmatively “assent” to be bound. If the Ninth Circuit does not grant ClassPass’ request and issue a new ruling in Chabolla, this case may signal the death knell for sign-in wraps, resulting in significant disruption, friction, and ultimately lower conversion for online companies who will be forced to redesign their sign-up flows to be click-wrap agreements (online agreements that require the user to affirmatively accept a company’s terms of use by clicking an assent box or button). Short of that, this decision increases business risk given that there are now conflicting opinions both within the Ninth Circuit and between the various Circuits.

On April 3, 2025, the United States Department of Justice’ Antitrust Division hosted a forum on “Big-Tech Censorship” in which key Trump Administration Officials announced their desire to reform, or entirely overhaul, Section 230 of the Communications Decency Act. In March 2025, we wrote about the Federal Trade Commission’s (FTC) inquiry into “tech censorship” and its associated request for public comments from those who “may have been harmed by technology platforms that limited their ability to share ideas or affiliations freely and openly.” That RFI remains open, and its deadline is May 21, 2025.

Despite other sweeping changes to the federal government under the Trump administration, the Modernization of Cosmetics Regulation Act of 2022 (MoCRA), passed under former President Biden, remains good law. Below, we report on recent trends in FDA’s implementation and enforcement of MoCRA in the early months of Trump’s presidency.

On March 18, President Trump fired the Federal Trade Commission’s two Democratic Commissioners, Alvaro Bedoya and Rebecca Kelly Slaughter. The move represents the latest effort by the Trump administration to exert greater control over executive-branch agencies, including bi-partisan independent agencies like the FTC.