Product Safety and Regulatory Compliance

Consumer and industrial products have long been targets for both plaintiffs and regulators. With increasingly complex regulations and high-dollar verdicts dominating headlines, companies face more risk than ever. 

Because every stage of the product lifecycle poses unique risks, having a dedicated team of lawyers who know your company and your products is critical for effective risk mitigation. From product design to launch and beyond, our cross-disciplinary teams provide cohesive and comprehensive advice to our manufacturer, supplier and retailer clients on the legal issues they face at every step along the way. 

Product Risk Assessment and Development

Companies face legal risk from the inception of a product. Our Product Liability and Mass Tort Litigation team, ranked as a top national firm in The Legal 500 (2022), provides holistic advice aimed at minimizing the risk of future litigation:

• Pre-Litigation and Regulatory Risk Assessment. We regularly conduct comprehensive pre-litigation and regulatory risk assessments for individual products and entire product lines. Whether you are designing a product for the first time, considering an acquisition, or deciding whether to put another company’s product on your shelves, we can help you identify and manage critical areas of litigation risk.
• Warnings, Instructions, Labeling, and Product Literature. We have extensive experience reviewing product labeling, safety data sheets (SDS), instruction manuals and other product literature to assess regulatory compliance, evaluate the strength of warnings and warranties and ensure consistent safety and risk messaging.
• Product Design Support. We work with a deep bench of scientific and engineering experts to advise our clients on manufacturing and design issues, the development of proprietary product safety testing protocols, and compliance with voluntary standards.

Chemical and Product Safety Regulatory Compliance

Manufacturers and retailers face a complex and ever-changing array of regulations. Our Chemicals, Products, and Hazardous Materials team has extensive experience helping companies navigate these schemes, including:

• Consumer Product Safety. We regularly review products for compliance with Consumer Product Safety Commission (CPSC) regulations and relevant testing and certification requirements. We have experience counseling clients on compliance and enforcement issues associated with the Consumer Product Safety Act, the Consumer Product Safety Improvement Act, the Federal Hazardous Substances Act, the Flammable Fabrics Act and the COVID-19 Regulatory Relief and Work from Home Safety Act. We also help our clients stay ahead of the curve by designing and auditing compliance programs, monitoring the latest trends in CPSC enforcement, and proactively identifying anticipated CPSC regulatory action.
• Environmental and Chemical. Consumer and industrial products often contain chemicals regulated by the Environmental Protection Agency (EPA) through the Toxic Substances Control Act (TSCA). Our Environmental Compliance and Defense team is a leader in TSCA compliance and defense. We regularly advise our clients on TSCA reporting obligations, TSCA compliance programs, and developments associated with ongoing TSCA regulatory activities, including EPA’s ongoing chemical risk evaluations. Our team also has expertise in the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which has recently been the subject of focus given the demand for effective surface disinfectants in the COVID-19 pandemic.
• California’s Proposition 65. Our dedicated Proposition 65 team specializes in California’s stringent chemical control statute. Nearly all companies doing business in California—including those that merely ship products into California—are affected in some way by Proposition 65, which is rife with complicated requirements and traps for the unwary. Our team knows the ins and outs of Proposition 65 and regularly counsels companies on effective compliance programs and the latest updates to the ever-changing list of chemicals and statutory requirements.
• Other Federal and State Statutory Schemes. We have experience counseling companies on compliance and enforcement issues associated with other state and federal statutory schemes intersecting with elements of product safety, including: the Poison Prevention Packaging Act; the Textile Fiber Products Identification Act, the Lacey Act, Occupational Health and Safety Act machinery safety regulations; the Magnuson Moss Warranty Act; the Fair Packaging and Labeling Act; state Toxics in Packaging acts; and countless other state product safety regulations.

Insurance

Our Insurance Coverage team has broad experience counseling clients on both traditional and emerging insurance solutions in the product safety and chemical sectors, including product liability and recall insurance. Whether you are looking to secure coverage for a brand new range of products, or looking to evaluate your current coverage for gaps, our team can help craft creative insurance programs to suit your company’s needs and goals. 

Advertising Compliance and Counseling

Our Advertising team helps clients proactively identify advertising and marketing risks and develop effective product and brand messaging. We have broad experience managing risk associated with claims about health and safety, efficacy, “green” products, products intended for children and other hot-button issues. 

We also understand that our clients’ relationships with their customers are a top priority, and we regularly counsel companies on loyalty programs and promotions, endorsements and campaigns, and warranties. 

Product Incident Investigation, Response, and Recalls

We know that legal problems are business problems. Catastrophic product incidents can damage a company’s hard-earned reputation and quickly lead to expensive litigation. Our team has deep experience managing product crises, including:

• Rapid Incident Investigation. We are ready to respond to product issues at a moment’s notice and work quickly to triage crises and assess the potential scope of liability. We are routinely on-site after product failures to interview witnesses, assess damages and provide hands-on support to craft an efficient and proactive response plan.
• Root Cause Analysis. We have longstanding relationships with leading experts in all areas of product safety and can quickly connect our clients with the experts who can identify the root cause of product failures. Throughout the process, we help our clients understand the potential scope of liability associated with any defects or design problems identified.
• Recall Facilitation. We regularly review product incidents to evaluate reporting and recall obligations. When our clients do need to recall products, we partner with them to develop effective and efficient recall plans that focus not only on eliminating the immediate hazard identified, but also on maintaining customer relationships and minimizing future risk. We guide our clients through all stages of the recall process, including facilitating communications with regulators, customers and the media.
• Customer Communications. When companies receive reports of product issues from customers or need to proactively alert their customers to potential product issues, strategic communication is key. The right response can help companies not only avoid litigation, but also maintain (and even strengthen) their relationships with customers. And in the event a dispute with a customer does reach litigation, a company’s early response to an incident can often help a company’s defense by demonstrating corporate responsibility and mitigating damages.
• Media/Press Management. We monitor media coverage regarding product incidents and pending litigation. We work with our clients and outside consultants as needed to develop appropriate media responses consistent with our clients’ litigation strategy and long-term business goals.

Defending Product Liability Claims and Enforcement Actions

We know our clients’ products and their businesses, and we work hard to monitor emerging litigation, regulatory, and scientific trends to help our clients stay one step ahead of regulators and the plaintiffs’ bar. If product problems do become litigation or regulatory enforcement issues, our Product Liability and Mass Tort Litigation, Environmental Compliance and Defense, and Insurance teams are ready to respond. 

From the time a potential business risk is identified until the matter’s conclusion, depth of experience in crisis management, risk mitigation and veteran trial lawyers are essential to the development of a comprehensive and winning defense strategy. Our top ranked (The Legal 500) product liability and mass tort litigation practice provides clients the advice and counsel needed to develop a business strategy to avoid litigation where appropriate, and the talent and experience required to engage and resolve litigation where necessary. Our trial lawyers, who are recognized in publications such as Chambers USA and Benchmark Litigation, defend a broad variety of complex tort litigation, including multi-plaintiff suits, multidistrict litigation, class actions and individual plaintiff cases involving all types of claims.