Consumer Protection Law Commons^™

Labeling Energy Drinks: Tackling A Monster Of A Problem, Meredith P. Mulhern, Michael S. Sinha

All Faculty Scholarship

Energy drinks first rose to popularity in the 1980s. Red Bull energy drinks were the first of its kind, opening the door to a new consumer and regulatory landscape. Since Red Bull first launched, multiple companies have released countless new energy drink products. Some energy drinks, like Red Bull, contain less than 100 mg of caffeine per 8 oz can. However, other energy drinks contain much higher amounts of caffeine. A 12 oz can of Celsius contains 200 mg of caffeine, and up until recently, Celsius offered a product called Celsius Heat, a 12 oz can containing 300 mg of …

How Close Is Close Enough: A Step-By-Step Analysis To Resolve The Circuit Split Created By Misunderstanding The Spokeo Ruling, Cason Shipp

St. Mary's Law Journal

No abstract provided.

Confronting Cosmetic Carcinogens: A Proposal Regarding The Dangers Of Talcum Powder, Rachael Howell

Helm's School of Government Conference - American Revival: Citizenship & Virtue

The Federal Government needs to stop the import, export, mining, and distribution of talcum powder in the United States. This is an issue that affects all Americans, especially active-duty military members.

Since 2013, there have been over 38,000 lawsuits against Johnson & Johnson, which allege that their talcum-based baby powder caused cancer. The plaintiffs in the very first talc case in the U.S. have died. All four of the plaintiffs from a 2019 suit have died. Yet, the 2019 case has been reversed and remanded. The FDA has redacted the names of scientist(s) that conduct “safety tests” on talc samples. …

Regulating Food Waste Management In Indonesia: Do We Need An Omnibus Law (Again)?, Ni Gusti Ayu Dyah Satyawati, I Nyoman Suyatna, Putu Gede Arya Sumerta Yasa, I Dewa Gede Palguna, Nadeeka Rajaratnam

Indonesia Law Review

Indonesia was regarded to be the world's second-largest food loss and waste-producing country. Food waste contributes the most significant amount in Indonesia compared to other types of waste. This paper aims to discuss three legal issues. First, it identifies, in descriptive-normative means, the legal framework regulating food waste, which is the intersection of two legal regimes: 'the food management' and 'the waste and environmental management”. Second, it presents a comparative study by exploring the more advanced food waste legal frameworks, which take examples from Europe. The third objective is to recommend legal, institutional, and policy steps to mainstream food waste …

I’M Not Lovin’ It: Re-Thinking Fast Food Advertising, Brody Shea, Michael S. Sinha

All Faculty Scholarship

In 1971, the Federal Trade Commission (“FTC”) and the Food and Drug Administration (“FDA”) agreed to prevent injury and deception to the consumer in advertising, detailing their respective roles in a Memorandum of Understanding (“MOU”).¹ The MOU proscribes that the FTC regulates truth in advertising relating to foods, drugs, devices and cosmetics while the FDA controls labeling and the misbranding of foods, drugs, devices, and cosmetics shipped in interstate commerce.² The MOU has been amended and an addendum added since 1971, but the material provisions have remained consistent for over a half-century.³

Importantly, the FDA and the …

Emerging Technologies And Perfection Of Security Interests: A Financial University Of Uncertainty, Elizabeth M. Wagenbach

Brooklyn Law Review

Since the founding of Bitcoin in 2009, digital assets, such as cryptocurrency, have exploded in popularity. Cryptocurrency has been associated with stories of immense profit and immense loss. The lucky transactors have been able to capitalize on the price fluctuations of cryptocurrency, while the unlucky transactors became victims of the same volatility, losing tremendous amounts of money. The novelty and ingenuity of cryptocurrency has been coupled with mass confusion to transactors and regulators alike. These early days of cryptocurrency have been characterized by a sort of regulatory tug of war that is a direct result of confusion of what cryptocurrency …

Against Monetary Primacy, Yair Listokin, Rory Van Loo

Faculty Scholarship

Every passing month of high interest rates increases the chances of massive job cuts and a devastating recession that still might come if the Fed maintains interest rates at their current levels for long enough. Recessions impose not only widespread short-term pain but also lifelong harms for many, as vulnerable populations and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the sacrifice that ensues. We call this inflation-fighting paradigm monetary primacy. …

The Consumer Bundle, Shelly Kreiczer-Levy

Washington Law Review

Can property law have a consumer protection purpose? One of the most important consumer law concerns today is the limited control consumers have over the digital assets and software-embedded products they purchase. Current proposals for reform focus on classifying the transaction as either license or sale and rely mostly on contract law and consumer protection regulation with a few calls for restoring ownership rights. This Article argues that property law can protect consumers by establishing a minimum bundle of rights for consumers: the “consumer’s bundle.” Working with property theory and an analysis of property values, this Article explains the importance …

Consumer Law For Gen Z Law Students, Neil Sobol

Faculty Scholarship

Whether they are consumers, representing consumers, or advising clients dealing with consumers, law school graduates will inevitably confront numerous consumer law issues. Moreover, most students entering law school are members of Generation Z and face a new wave of consumer laws arising from the 2007–2009 recession and the rapid growth of new technologies. Clickwrap agreements, email spoofing, cybercrimes, cryptocurrencies, fintech, identity theft, online disparagement, data privacy, artificial intelligence, robocalling, and autonomous vehicles are among the evolving topics in modern consumer law. Despite the growth in consumer law concerns, many law students have limited access to consumer law options, with almost …

What It Takes To Write Statutes That Hold The Firearms Industry Accountable To Civil Justice, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

This Essay defends statutes creating public nuisance and consumer protection causes of action against firearms industry actors for their failure to take reasonable measures to control the flow of their products to criminal users. Such laws are predicate statutes under PLCAA and do not infringe the Second Amendment.

Misleading Markets: Consumer Protection In The Age Of Climate Washing, Ciara Peacock

West Virginia Law Review

No abstract provided.

Terms Of Injustice, Przemyslaw Palka

West Virginia Law Review

Terms of Service (ToS) of online platforms often contain Consumer Unfriendly Terms (CUTs). The CUTs encompass clauses limiting consumers’ rights in dispute resolution, limitations on remedies, and corporations’ rights to unilaterally modify the service, delete users’ content, and benefit from their data. The ToS resemble the offline “boilerplate” but, given the context of their functioning—digital capitalism—they also exhibit some critical differences, rendering the context-specific analysis necessary.

This Article argues that the continued toleration of the CUTs is undesirable on economic and democratic grounds. In digital capitalism, online platforms often enjoy a (quasi-)monopolistic position. Further, they can (factually and legally) collect …

Online Disinhibited Contracts, Wayne R. Barnes

Pepperdine Law Review

There have been at least two dominant forces at work in the realm of consumer contracting over the past several decades. One has been the rise and domination of the standard form contract (whereby merchants contract with consumers via the use of standardized, boilerplate terms and conditions that consumers do not read or understand). The second force has been the rise of e-commerce and the purchase of goods and services via websites and other online platforms, and the use of “wrap” formation methodology (whereby merchants obtain consumer assent to the online terms and conditions via the consumer’s informal click, scroll, …

Gray Areas In Green Claims: Why Greenwashing Regulation Needs An Overhaul, Valerie J. Peterson

Villanova Environmental Law Journal

No abstract provided.

The Data Heist: Protecting Consumers And Their Information Through Opt-In Consent, John A. Hudson

Arkansas Law Review

This Comment will: (1) compare and contrast the data privacy laws in the United States and the European Union; (2) demonstrate the significant risk American consumers are subject to under the United States’ current laws and regulations; and (3) address the protections provided by the European Union’s explicit opt-in consent requirement that would ensure safer conditions for American consumers.

Not-So-Smartphone Disclosures, Jeff Sovern, Nahal Heydari

Arkansas Law Review

The consumer credit market, and particularly the credit card market, lacks perfect competition. Though usury laws and regulation of charges are germane to our findings, this Article focuses largely on disclosure. Specifically, we examine whether consumers understand the disclosures mandated for credit cards in the medium in which many consumers now engage in financial transactions. This Article proceeds as follows: Part I presents some basics on consumer protections for credit cards. Part II reviews the literature concerning disclosures on smartphones. Part III discusses our methodology. Part IV reports our findings. Part V suggests some normative implications.

Thanks For The Lyft: Optimizing Rideshare Safety In Arkansas, Addison A. Tucker

Arkansas Law Notes

Rideshare companies such as Uber and Lyft, also known as Transportation Network Companies (“TNCs”), are underregulated and provide little protection to passengers, despite the thousands of women who have reported instances of sexual violence during their trips. This Comment argues that Arkansas law should be modified to strengthen the criminal background checks of potential rideshare drivers, require surveillance during rides, and classify the impersonation of a rideshare driver as a felony.

Online Disinhibited Contracts, Wayne R. Barnes

Faculty Scholarship

There have been at least two dominant forces at work in the realm of consumer contracting over the past several decades. One has been the rise and domination of the standard form contract (whereby merchants contract with consumers via the use of standardized, boilerplate terms and conditions that consumers do not read or understand). The second force has been the rise of e-commerce and the purchase of goods and services via websites and other online platforms, and the use of “wrap” formation methodology (whereby merchants obtain consumer assent to the online terms and conditions via the consumer’s informal click, scroll, …

The Angel Wears Prada, The Devil Buys It On The Realreal: Expanding Trademark Rights Beyond The First Sale Doctrine, Junajoy Vinoya Frianeza

Pepperdine Law Review

Luxury brands derive their goodwill from the high-class exclusivity and first-rate quality signified in their trademarks. The Trademark Act of 1946, commonly known as the Lanham Act, grants trademark holders the right to control use of their mark. However, under common law, the first sale doctrine restricts trademark protection after holders authorize the initial sale of their trademarked product. Such limitation particularly jeopardizes the luxury industry as trademark holders ultimately bear the loss of goodwill when counterfeit luxury goods enter the market due to the negligence of resellers. This Comment illustrates how blockchain authentication offers all luxury industry participants—the brands, …

Controlling Moral Hazard In Limited Liability With The Consumer Sales Practices Act, Nathaniel Vargas Gallegos

Journal of Legislation

The few states that have passed the Model Consumer Sales Practices Act have common definitions and case law regarding the definition of a “supplier.” This definition is broad enough to include managers of companies in limited liability entities in the states that have adopted the model act. The practicality is that business principals, owners, and managers can be held personally liable for deceptive practices under the state acts. But this is not a piercing of the corporate veil or of the limited-liability company. This Article is meant to accomplish four purposes: (1) exhibit the origins of the act, (2) show …

Have Some Heart For The Heartland: A Call For A Federal Right To Repair Law, Gabriel Dominic Gomez

Journal of Legislation

No abstract provided.

Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain

Seattle University Law Review

The Berle XIV: Developing a 21st Century Corporate Governance Model Conference asks whether there is a viable 21st Century Stakeholder Governance model. In our conference keynote article, we argue that to answer that question yes requires restoring—to use Berle’s term—a “public consensus” throughout the global economy in favor of the balanced model of New Deal capitalism, within which corporations could operate in a way good for all their stakeholders and society, that Berle himself supported.

The world now faces problems caused in large part by the enormous international power of corporations and the institutional investors who dominate their governance. These …

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

Corporate Law In The Global South: Heterodox Stakeholderism, Mariana Pargendler

Seattle University Law Review

How do the corporate laws of Global South jurisdictions differ from their Global North counterparts? Prevailing stereotypes depict the corporate laws of developing countries as either antiquated or plagued by problems of enforcement and misfit despite formal convergence. This Article offers a different view by showing how Global South jurisdictions have pioneered heterodox stakeholder approaches in corporate law, such as the erosion of limited liability for purposes of stakeholder protection in Brazil and India, the adoption of mandatory corporate social responsibility in Indonesia and India, and the large-scale program of Black corporate ownership and empowerment in South Africa, among many …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Stakeholder Governance On The Ground (And In The Sky), Stephen Johnson, Frank Partnoy

Seattle University Law Review

Professor Frank Partnoy: This is a marvelous gathering, and it is all due to Chuck O’Kelley and the special gentleness, openness, and creativity that he brings to this symposium. For more than a decade, he has been open to new and creative ways to discuss important issues surrounding business law and Adolf Berle’s legacy. We also are grateful to Dorothy Lund for co-organizing this gathering.

In introducing Stephen Johnson, I am reminded of a previous Berle, where Chuck allowed me some time to present the initial thoughts that led to my book, WAIT: The Art and Science of Delay. Part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.