Common Law - The FindLaw Consumer Protection Law Blog

May 2015 Archives

All those annoying telemarketing robocalls and unwanted texts may soon become a thing of the past. Hopefully.

The FCC is considering new rules that will allow users to say no to spam texts and robocalls.

Telephone Consumer Protection Act of 1991

The Telephone Consumer Protection Act (TCPA) regulates telemarketing. The act requires telemarketers to identify themselves on all calls, prohibits calls before 8:00 a.m. and after 9:00 p.m., and restricts calls to people who are on the National Do Not Call Registry.

Despite these regulations, there are still loopholes in the law that allow marketers, bill collectors, and certain businesses to bombard consumers with unwanted phone calls and text messages.

The proposed new regulations seek to close those loopholes.

New Rules

While most of the new regulations are targeted to mobile phone customers, some traditional telephone services will also be protected. Under the new regulations:

  1. Consumers can revoke consent.-- Previously customers had to consent to receive telephone calls and texts. Once they've consented, marketers would make consumers jump through hoops, such as sending letter and filling out forms, to revoke their consent. The new rules would allow consumers to revoke consent just by saying so during a telemarketing call.
  2. Telephone companies can block robocalls.-- Under certain laws, telephone companies are required to connect phone calls. So, they were hesitant to employ robocall-blocking technology. The new regulations now encourage companies to offer robocall-blocking technology to customers.
  3. Telemarketers cannot repeatedly call wrong numbers.-- With more and more people getting rid of landline service in favor of cellular phones, many of the old landline numbers are getting recycled and given to new customers. So, telemarketers are calling numbers whose previous owners gave consent, but the new owner did not. The new regulation would allow telemarketers to get away with the first call, but once they know that the number now belongs to someone else, they can't make any subsequent calls without permission.

These rules are only proposals as of now, and will be voted on at a meeting on June 18.

Related Resources:

What to Do if You Find a Bug in Your Food?

Beware of beetles!

Most people don't order salads with a side of beetles, but some are getting them regardless. Consumerist recently reported that several consumers have found Iron Cross Blister Beetles in packaged organic salads. Yuck!

What do you do if a bug of any kind makes an appearance in your food?

Iron Cross Blister Beetles

Most of the time, bugs and other foreign objects in food are gross but usually harmless.

However, the Iron Cross Blister Beetle can be toxic. When stressed, the beetles release a toxin call cantharidin. While the substance isn't exactly fatal, in can cause nausea and sickness in healthy adults. Also, touching the beetles can cause skin blistering. The beetles are even used in wart removals.

Cases of blister beetles found in salad have popped up in Illinois, Virginia, Ohio, Massachusetts, and California.

FDA's Rule

Don't freak out, but the Food and Drug Administration allows manufacturers to include some bugs in their food products without repercussion. Title 21, Code of Federal Regulations Part 110.110 establishes maximum levels of natural or unavoidable defects in food. According to the FDA low levels of bugs and other defects pose no inherent hazard to your health.

For example, frozen broccoli can have up to 60 aphids per 100 grams of broccoli. Ground paprika can have up to 11 rodent hairs per 25 grams. Chocolate can have up 60 insect fragments per 100 grams. Canned fruit juices can have up to five fly eggs per 250 ml. Macaroni and noodle products can have up to 225 insect fragments per 225 grams.

What Can You Do?

If you do find a bug, or more specifically a blister beetle, in your salad, you should take pictures and keep the product and bug, if possible, as evidence to send to the manufacturer.

Report the incident to the grocery store where you bought it and the company that produced it. Many companies will want to investigate where the bugs may have entered their production process. They should offer you a refund.

You should also notify the FDA. While some bugs in food may be acceptable, the presence of toxic bugs such as the blister beetle may be cause for concern and investigation for the FDA.

Related Resources:

Your airbag may be a ticking time bomb in your car.

Takata, the world's second largest supplier of airbags, has finally admitted that its airbags are defective. Here is what you need to know:

The Defect

Takata has announced that the propellant that makes the airbags inflate could degrade over time when exposed to high humidity and frequent changes in temperature. The propellant is prone to "overaggressive combustion." The violent explosions when the airbags deploy can send shrapnel flying into the car's passenger compartment.

While the company has maintained that there was no defect until now, the airbag problems were evident as early as 15 years ago. As early as 2000, consumers filed complaints to the National Highway Traffic Safety Administration (NHTSA) regarding injuries caused by exploding airbags. A New York Times report claims that Takata tested and found defects in 2004, but hid results from regulators. The company denied those reports.

Back in 2008, Honda recalled over 500,000 cars with Takata airbags after a teenager was killed by shrapnel from the exploding airbags.

Overall, six people have died, and more than 100 have been injured by the defect.

The Recall

As of right now, Takata and NHTSA do not have a complete list of all cars subject to the recall. According to estimates, at least 15 car brands and 60 different models may be affected. Reports claim that up to 52 million cars worldwide, are affected.

Prior to this recall, individual car makers have already issued their own recalls for airbag defects. Recently, Honda, Toyota, and Nissan expanded its airbag recall to cover 11.5 million cars worldwide. In addition to those three companies, Acura, BMW, Chrysler, Dodge, Ford, Infiniti, Lexus, Mazda, Nissan, Pontiac, Saab, and Subaru have also issued Takata airbag recalls.

With so many cars requiring new airbags, Takata is having trouble making enough replacement airbags. So far, Takata has made nearly four million replacement airbags, and plans to have eight million more by the end of the year. Autoliv, the world's largest airbag manufacturer, also plans to make 25 million replacement airbags by then end of 2016.

Does your car have a defective airbag? You can use NHTSA's recall tool to search for recalls affecting your car. If you've been injured by your airbag, consult with an experienced personal injury attorney to see if you have a claim for compensation.

Related Resources:

When is Charging Women More Than Men Illegal?

Have you heard of the pink tax? Did you ever notice that products for women often cost more than the identical product for men?

At Old Navy, women's plus sizes were charged more than women's regular sizes, but men's clothing were the same price regardless of size. The United States charges an 8.5 percent import tariff on men's sneakers but a 10 percent tariff on women's sneakers. On average, women spend $1,351 per year more than men for similar products.

Is charging women more than men legal?

Gender Discrimination and The Law

While the Civil Rights Act of 1964 outlawed discrimination based upon sex, among other grounds, what these companies are doing isn't illegal because it isn't exactly discrimination.

Companies are offering two different products. The products for men may be priced lower than the products marketed to women. However, this isn't stopping women from buying the product marketed to men at the lower price.

Alternatively, if a store was selling one product and charged one price when a man bought it and a higher price when a woman bought it, this could be considered discrimination.

If these pricing tactics are legal, when is charging women more than men illegal?

Services in California

In 1996, California passed bill AB1100 that makes it illegal for service providers to charge women more than men solely on the basis of gender for the same services. Generally if a business provides the same service to men and women they must charge the same price for both genders.

The bill does allow a higher charge for services that require more time, cost, or effort for women than men. For example, a manicure for a man could cost less than a woman's if the man's manicure did not include nail painting and nail polish.

This bill only addresses half of the issue since it does not apply to the pricing of goods.

Health Insurance

Before the Affordable Care Act, nonsmoking women often pay higher premiums than smoking men. This is called gender rating. Insurance companies claim that women pay more because they use more health services.

Since the Affordable Care Act, which requires insurance companies to stop pricing women differently than men, 14 states, including Colorado, California, Maine, Massachusetts, have passed laws that ban gender rating in health insurance.

Until more states pass laws prohibiting gender based pricing, don't get fooled by the marketers ladies.

Related Resources:

Yelp is great -- we can praise our favorite stores, shops, and restaurants and complain about false advertising and bad service. And then the businesses ruin it by suing people for bad reviews.

Everyone's got a voice on the Internet these days, and online opinion travels fast, so maybe it's only natural to expect businesses to try and protect their reputation with over-the-top litigation meant to bludgeon their critics into silence. But those days may be over due to a new federal consumer protection law.

Permission to Speak Freely

When companies or other private entities try to silence criticism via lawsuits it's known as a SLAPP: a strategic lawsuit against public participation. The classic example is a citizen's group that opposes real estate development or environmental damage being sued by a commercial developer -- the lawsuit can be so costly and time-consuming that the citizen's group either is unable to continue criticisms or refrains out of fear of further legal action.

Many states have instituted anti-SLAPP laws to protect the right to participate in public activism without fear of a defamation lawsuit and also to defend Internet commenters.


H.R. 2304, also known as the SPEAK FREE Act of 2015, is based on anti-SLAPP statutes in California and Texas. The law would provide and expedited way for someone being targeted with such a suit to have it dismissed. The goal is to discourage businesses from threatening to sue customers for sharing public opinions by giving consumers an easier way to get out of the lawsuit.

For its part, Yelp is in full support of SPEAK FREE and the Consumer Review Freedom Act of 2015 which would prohibit non-disparagement clauses in consumer contracts:

Whether people are expressing their opinions in the form of a consumer review, an editorial in a newspaper, or commentary on a blog, it's important that they not be bullied into retracting their criticism. Having both of these laws in place at the federal level will ensure that Yelpers, and all Americans who care about their freedom of speech, are protected from wealthy bullies and powerful special interest groups.

We'll be keeping a close eye on these bills protecting consumer free speech -- they've got a long way to go to become law.

Related Resources:

Chili's Sued for Sneakily Charging For Games

It looks like Chili's did not read about the lawsuits Apple, Google, and Amazon had to face for kids' in-app purchases.

Brenda Quijada, on behalf of hapless parents and guardians, sued Brinker Restaurant Corp. and Ziosk last week. She claims that Chili's is bilking customers by charging an undisclosed entertainment fee for kid's games played on pay-at-the-table tablets.

The Lawsuit

Brinker Restaurant Corp. is the parent company of Chili's. Ziosk is the company that created the first pay-at-the-table tablets.

Chili's has 7-inch Android tablets at tables to let diners view the menu, order food and drinks, and play games. However, according to Quijada, Chili's charges an undisclosed 99-cent "entertainment fee." Quijada claims that the tablet and apps specifically target kids. The tablets have free content such as dietary information and a link to "USA Today." However, the more exciting games such as Spy Mouse, Plants vs. Zombies, and Poppit! are premium content subject to the entertainment fee.

Quijada argues that the tablets do not allow any parental controls, and do not notify users of the fee beforehand.

Brinker's company spokeswoman told Courthouse News that they have not yet been served with the lawsuit, so it will be a while before we see any resolution in this case.

Other In-App Purchase Lawsuits

However, if the allegations are true, precedent may mean that Quijada may see a payout in the future.

In 2011, Apple was slapped with a lawsuit that claimed the company offered free games in order to lure children into making expensive in-app purchases without their parents' supervision and permission. At the time, Apple apps allowed children to make in-app purchases without having to enter a password within 15 minutes of an initial app purchase. Children unknowingly made hundreds of dollars of in-app purchases. Apple agreed to pay a $32.5 million settlement.

After a similar lawsuit, Google agreed to pay a $19 million settlement to refund kids' in-app purchases. Amazon has also been sued by the FTC for similar in-app purchases.

Quijada is seeking class action status for her lawsuit, so if you've also been charged an entertainment fee for using Chili's game apps, you may be eligible for a part of any future settlement.

Related Resources:

GM Ignition Switch Defect Deaths Reach 100

Last year, General Motors insisted that only 13 deaths were linked to its ignition switch defects.

This week, the GM ignition switch death toll has reached 100, seven times higher than GM's initial claims, according to the Consumerist.

The Defect

Last year, GM recalled 2.6 million cars for a defective ignition switch. However, GM allegedly knew about the defect as early as in 2003 or 2004 and successfully covered it up for more than a decade.

The ignition switches were defective because they could slip out of the "on" position while the car was in motion. This would stall the car, disable the airbags, and cause car crashes.

In the aftermath of an internal investigation, GM fired 15 employees, overhauled its engineering operations, and changed its safety protocols. GM paid federal regulators a $35 million fine for failing to report the defect in a timely manner, and the company is still under investigation by the Justice Department.

Claims and Adjudication

Last August, GM opened a compensation fund to make payments to people injured or killed by the defect. By the time the claim acceptance window closed in January of this year, the fund received 4,180 claims.

Of those claims, 1,759 claims have been denied. More than 1,600 claims were deficient or did not have supporting documentations. The fund has already approved payment for 100 deaths and 184 injuries, and 37 death claims and 589 injury claims are still under review.

According to Camille Biros, deputy manager of the compensation fund, many of the approved death claims involved younger victims in the teens and early 20s. With compensation for death claims starting at $1 million per claim, GM has already paid $200 million to settle approved claims. The company has set aside $550 million dollars for the fund, but expects that total compensation cost could be as high as $600 million.


The window to file a claim with the compensation fund has closed, and people who have received compensation from the fund waive their right to litigate against GM.

However, if you've missed filing a claim, but believe you or a family member may have been injured or killed because of G.M.'s defective ignition switch, you may still be able to pursue a claim in court. An experienced personal injury attorney will be able to help you assess your claim.

Related Resources:

Check Your Credit Report!

When you buy a car, the dealer checks your credit report. When you apply for a home loan, the bank checks your credit report. When you apply for a job, even your employer may check your credit report.

And the hits just keep on coming for Lumber Liquidators.

A little while back we told you about 60 Minutes' expose on the unsafe and illegal formaldehyde levels found in Lumber Liquidators' laminate flooring. Since the show aired, the beleaguered flooring company has been hit with more than 100 class action lawsuits and investigated by the Consumer Products Safety Commission and the California Air Resources board.

As the fallout continues, Lumber Liquidators Holdings has now been hit with criminal charges by the U.S. Department of Justice.

Formaldehyde in Flooring

Formaldehyde is a colorless, pungent gas that is known to cause lung and nasopharyngeal cancer, eye, nose, and throat irritation, chest pains, bronchitis, and ulcers.

While formaldehyde can be found in certain products, such as the glue used to make laminate flooring, many states and the federal government have set limits on the acceptable level of formaldehyde in consumer products. Independent testing has shown that Lumber Liquidators' Chinese made laminate flooring exceed California's formaldehyde emissions standards by 600-700 percent.

Criminal Charges

The U.S. Department of Justice is pursuing criminal charges under the Lacey Act.

The Lacey Act, passed in 1900, outlaws the interstate traffic of birds and animals illegally killed in their home state. The Lacey Act has since been expanded to enforce state, federal, and foreign conservation laws protecting animals and rare plants.

As it applies to Lumber Liquidators, the Lacey Act makes it "unlawful for any person to import, export, transport, sell ... any plant taken, possessed, transported, or sold in violation of any Federal, State, foreign, or Indian tribal law, treaty, or regulation." The company's Chinese-imported wood laminate flooring allegedly violates California's air safety standards.

If convicted, the company may face criminal and civil penalties. Civil penalties can be as high as $10,000. Criminal penalties are much more severe. A felony offense under this law carries a maximum fine of $500,000 and up to five years in prison for each violation of the Act.

If you believe you may have been injured by high formaldehyde levels in your Lumber Liquidators flooring, an experienced personal injury attorney may be able to help you pursue a claim.

Related Resources: