Did the Other Shoe Drop? Another Class Action Against New Balance for its “Made in USA” Claims
The FTC regularly investigates Made in USA claims, but private actions have been less frequent. New Balance, however, has faced at least two class action lawsuits alleging it falsely advertises its footwear products as “Made in the USA.” The most recent complaint , proposing a nationwide class, was filed in the U.S. District Court for the District of Massachusetts and alleges violations of California’s False Advertising Law, Unfair Competition Law, and Consumers Legal Remedies Act, as well as fraud and breach of warranty. New Balance has filed a motion to dismiss, asserting that plaintiffs are trying to re-litigate the same legal theories and the same conduct involved in a case that New Balance previously settled. In the previous case, without admitting liability, New Balance agreed to take additional steps (operative by the 2019 settlement date) to disclose that its shoes have “domestic value of 70% or greater” and to pay $750,000.
Buy American Final Rule Ups the Domestic Content Ante
The Biden Administration continues to advance its Made in America policy priorities through amendments to the Federal Acquisition Regulation (FAR) implementing the Buy American Act (BAA). The latest such amendment, a final rule published March 7, 2022:
Increases the current 55 percent domestic content threshold for end products or construction material to 60 percent as of October 25, 2022;
Further increases the domestic content threshold to 65 percent in calendar year 2024; and
Increases the threshold to 75 percent in calendar year 2029.
The FAR amendment also:
Provides a fallback threshold to allow products meeting a 55 percent domestic content to qualify as a domestic product under certain circumstances; and
Establishes a framework for an enhanced price preference for domestic products considered to be “critical” or made up of “critical components” (to be defined in a subsequent rulemaking).
Made in USA Closing Letter Addresses Retailer Obligations
As we’ve noted in other posts, an FTC rule prohibits companies from stating or implying that a product is made in the USA unless: (1) the final assembly or processing of the product occurs in the USA; (2) all significant processing that goes into the product occurs in the USA; and (3) all or virtually all ingredients or components are made or sourced in the USA. It can be a challenge to figure out whether a product you make meets that standard, but it’s even harder to figure that out for products you didn’t make.
Monday, March 28, 2022 3:00 PM - 4:00 PM ET / 12:00 PM – 1:00 PM PT
Buckle Up: 2022 Hot Topics in Consumer Protection
In 2022, the Federal Trade Commission (FTC) plans to increase enforcement against the use of “dark patterns” for subscription services and repair restrictions that impair consumers’ ability to fix their own products, to review or take action on almost 20 existing rules and guides (including those addressing influencers and green marketing), and to develop new rules on topics like surveillance, and unfair methods of competition. State Attorneys General and other regulatory and enforcement agencies are also expected to increase their consumer protection enforcement efforts this year. This program will provide a crash course on federal and state consumer protection priorities, with practical tips to help avoid a collision.
Tuesday, March 29, 2022 12:00 PM - 1:00 PM ET / 9:00 AM – 10:00 AM PT
Hot Market / Cold War: Is China Your Best Customer or Your Biggest Threat?
Relations between the United States and China have been tumultuous over the last decade -especially in recent years - however, trade and investment ties remain robust between these two economic powers. In this one-hour webinar we will discuss the state of U.S. – China relations and how they have evolved in recent years; whether and where the U.S. should focus on strategic competition or seek cooperative action; the challenges business face doing business in or with China; and what role the Biden Administration, U.S. Congress and other global economic and trade institutions may play in the determining the path forward. Kelley Drye International Trade Chair, John Herrmann.
Tuesday, April 19, 2022 12:00 PM - 1:00 PM ET / 9:00 AM – 10:00 AM PT
Solving the China Challenge: Practical Advice for Engaging in Trade and Investment with China
Businesses face multiple challenges when engaging in commerce with China as the political and reputational risks of doing business there grow, and Chinese investment in the U.S. faces heightened scrutiny. Consumer-facing companies face pressures from shareholders and customers to disassociate themselves from supply chains that may include forced labor or other human rights violations; U.S. manufacturers face sanctions and export restrictions as goods, technology and know-how transfers to China are viewed increasingly through a tightening national security lens; and investors are facing heightened scrutiny as CFIUS has steadily increased its examination of Chinese investment in U.S. businesses. This webinar will discuss the various challenges of doing business with, and in, China and the practical implications of cross-border, bi-directional commerce with the U.S.’ most contentious trading partner.
Kelley Drye’s Advertising and Marketing practice prepares a comprehensive summary of FTC closing letters relating to Made in USA matters: Click here.
The Advertising and Marketing and Privacy and Information Security practice groups at Kelley Drye have organized this Advertising and Privacy Law Resource Center to help your company navigate the legal landscape. While this practical site is not exhaustive, it addresses key legal topics relevant to advertising and marketing, privacy, data security, and consumer product safety and labeling. Feel free to contact us to discuss any specific claims, privacy or data security practices, or for any other questions.
The laws regulating advertising and privacy can seem daunting. The potential for liability arising from inaccurate or misleading advertising or lax privacy practices can be significant, both as a consequence of regulatory enforcement and of litigation. The Advertising & Marketing and Privacy & Information Security practice groups at Kelley Drye & Warren LLP have organized this “Advertising and Privacy Law Desktop Reference Guide” to help your company navigate the legal landscape. While this practical guide is not exhaustive, it addresses key legal topics relevant to advertising and marketing, privacy, data security, and consumer product safety and labeling. Feel free to contact us to discuss any specific claims, privacy or data security practices, or for any other questions