The proposed revisions would clarify responsibilities for retailers and for upstream manufacturers and distributors; comments on proposed changes are due October 21.
On October 8, 2019, Pillsbury issued an alert regarding the then-proposed amendments to the regulations. To recap the highlights of that alert, “actual knowledge” is now defined as follows:
the retail seller receives information from any reliable source that allows it to identify the specific product or products that cause the consumer product exposure. Such knowledge must be received by the retail seller, its authorized agent or a person whose knowledge can be imputed to the retail seller.
This new definition should prevent retailers from being imputed with “actual knowledge” of an entire category of products. Information as to a specific product must be received in order for the retail seller to have actual knowledge.
However, downstream entities, such as retail sellers, should note the amendments now allow upstream entities, such as product manufacturers, suppliers, and distributors, to provide “written notice [of a required warning] directly to the authorized agent for the business to which they are selling or transferring the product or to the authorized agent for a retail seller ….” Upstream entities now have a mechanism of shifting the warning burden downstream.
For more information, or to discuss the implications of these amendments, please contact us.