Insights

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 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.

On April 2, 2025, the U.S. Supreme Court extended the reach of Section 1964(c) of the Racketeer Influenced and Corrupt Organizations (RICO) Act by holding that a plaintiff may seek treble damages for a business or property loss resulting from a personal injury.[1] The 5-4 decision has resolved a 3-2 circuit split over whether the RICO statute precludes relief for losses stemming from a personal injury.

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.

In 2023 and 2024, several U.S. states enacted extensive “Right to Repair” laws, reflecting a growing legislative focus on ensuring consumers have access to the parts and resources needed to repair their own products without relying on the product’s original manufacturer. Most recently, California, Colorado, Minnesota, New York, Massachusetts, and Oregon implemented comprehensive regulations aimed at providing consumers direct access to tools, parts, and information for the repair of various electronic devices and equipment, including digital products and agricultural machinery. As the “Right to Repair” movement continues to gain significant traction across the United States, it is critical that manufacturers understand these laws and how these laws will impact their individual businesses.

On December 11, 2024, the Food and Drug Administration (FDA) released a final guidance concerning the Modernization of Cosmetics Regulation Act (“MoCRA”)’s facility registration and product listing submission requirements, which FDA began enforcing on July 1, 2024. This guidance includes key FDA recommendations and instructions, including the following:

With the coming of the new presidential administration, state antitrust enforcement is poised to intensify. We expect both Republican and Democratic Attorneys General (AGs) to actively pursue antitrust investigations and litigation. They will fill in where the U.S. Department of Justice and Federal Trade Commission reduce focus but are also sure to work, including on a bipartisan basis, with their federal counterparts. Below, we explore how state AGs are likely to shape the antitrust landscape in the coming four years, and the areas where we anticipate significant enforcement activity.

Over the 2024 summer, new EU rules entered into force regarding unsold consumer products under the new ESPR (i.e. the Ecodesign for Sustainable Products Regulation – Regulation (EU) 2024/1781).  The legal obligations themselves are relatively concise and short in number and therefore perhaps easy to overlook.  However, companies selling or supplying consumer products in the EU/EEA – particularly companies in the clothing, footwear, apparel, textile and retail sectors – should beware and not underestimate their importance or impact.

A warning letter posted by the Food and Drug Administration (FDA) on June 18, 2024 offers a first glimpse into how FDA may enforce its new regulatory scheme for products that fall within the Modernization of Cosmetics Regulation Act of 2022 (MoCRA)’s purview. While MoCRA was enacted in December 2022 and many of its provisions became enforceable on December 29, 2023, until now, many have wondered how FDA will exercise its new enforcement powers.

The DOE in 2023 significantly increased its enforcement activity against manufactures and importers alleged to have violated EPCA’s energy and water conservation standards and related certification requirements, based on available public information. As we previously flagged, the substantial rise in enforcement activity comes as the Biden Administration increasingly focuses on EPCA as a means of achieving environmental policy objectives, including reducing carbon emissions. The Department has continued its enforcement efforts in 2024 and early data from this year sheds light on the Department’s enforcement priorities.

Could the end of Section 6(b) of the Consumer Product Safety Act (CPSA) actually be near?  Time will tell.  But last week’s development on Capitol Hill in the saga of “Section 6(b)” is noteworthy, and, one day in the not-so-distant future, may be recognized as the beginning of the end for this controversial provision of the law.   

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On Monday, June 19, 2017, the U.S. Supreme Court issued the latest in a series of decisions clarifying the constitutional limits on where corporations may be sued outside their "home" forums. In Bristol-Myers Squibb Co. v. Superior Court of California for the County of San Francisco, the Court held, 8-1, that California state courts had no jurisdiction to hear the claims of non-California residents against Bristol-Myers Squibb Co. (BMS), a foreign corporation incorporated in Delaware and headquartered in New York. Writing for the majority, Justice Samuel Alito held that BMS’s sales of its drug Plavix to California consumers, however extensive, were not enough to create personal jurisdiction in that case, given that (1) the non-resident plaintiffs did not claim to have suffered harm in California, and (2) all the conduct giving rise to these non-residents’ claims occurred outside California.

UPDATE: On June 19, 2017, the U.S. Supreme Court upheld the Federal Circuit’s holding in In Re Tam, holding that the disparagement clause of the Lanham Act, 15 U.S.C. § 1052(a), violates the First Amendment’s Free Speech Clause. The Supreme Court decision can be found here.

On June 7, the U.S. Consumer Product Safety Commission provided administrative law followers a fascinating case study. For the first time in two decades, the CPSC’s five Commissioners heard an appeal put on by CPSC staff in administrative litigation. In its appeal, the staff seeks to overturn an administrative law judge’s opinion finding that Zen Magnets’ controversial high powered, small rare earth magnets (SREMs) are not defective and are not a substantial product hazard when sold with appropriate warnings. Novel already, what made this argument all the more interesting was an additional wrinkle:  four of the five Commissioners who heard the appeal had voted previously to approve a final safety standard that has the practical effect of banning such magnets outright.

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