Subject: Cosmetic Products

Solving the Culpable Co-Defendant Problem: An Update on Preserving Your Client’s Defenses after a Culpable Co-Defendant Files a Motion for Summary Judgment in California State Court

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California appellate courts have recently provided much needed clarity for defendants wishing to preserve the ability to attribute fault to a potentially culpable co-defendant seeking summary judgment. We previously addressed this issue in a 2021 blog post, highlighting the uncertainty facing defense counsel where granting summary judgment to a co-defendant would preclude an empty chair defense. Two published 2025 decisions now confirm that defendants can oppose a co-defendant’s summary judgment motion directly with no cross-complaint required.

This is a rare and tricky situation. Defendants in multiparty litigation often share interests. Opposing a co-defendant’s motion can inflate costs, strain relationships, and ultimately benefit plaintiffs. But sometimes preserving the ability to attribute fault to a co-defendant is necessary to protect your client.

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California Supreme Court Rejects Duty to Innovate

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On August 3, 2026, the California Supreme Court issued its decision in the closely watched Gilead Tenofovir Cases, No. S283862, — Cal.5th —, 2026 WL 2223748 (Cal. Aug. 3, 2026), rejecting the so-called “duty to innovate.” The court held, in a 6-1 decision, that “a drug manufacturer has no duty of care when deciding whether and when to develop and commercialize an allegedly safer alternative drug” to replace an admittedly nondefective drug. The decision is a significant victory for pharmaceutical manufacturers and carries substantial implications for product liability litigation across industries.

Background

The case arose from a Judicial Counsel Coordination Proceeding comprising more than 30,000 plaintiffs — HIV patients who took Gilead’s tenofovir disoproxil fumarate (TDF). Plaintiffs did not claim TDF was defective; it is undisputedly a life-saving medication. Instead, they alleged Gilead unreasonably delayed bringing an alternative medication, tenofovir alafenamide (TAF), to market, depriving them of a purportedly safer option and allegedly causing kidney, bone, or tooth injuries.

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New York’s Beauty Justice Act: Sweeping Changes Proposed for Cosmetics and Personal Care Products

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New York lawmakers are advancing the Beauty Justice Act, one of the most comprehensive state-level efforts in the country to regulate cosmetics and personal care products. For in-house counsel at cosmetics and personal care companies, the bill is worth tracking now because it could affect product formulation, supplier oversight, labeling, and litigation risk well before any compliance deadline. The bill responds to growing concerns over consumer exposure to chemicals linked to cancer, hormone disruption, reproductive harm, allergies, and other health risks. Supporters argue that current federal law, including the Modernization of Cosmetics Regulation Act of 2022 (MoCRA), does not go far enough. Framed as both a public health and environmental justice measure, the legislation aims to protect consumers in vulnerable communities disproportionately exposed to these products.

  1. Background

    The Beauty Justice Act remains pending before the New York Legislature; if enacted, its core product restrictions would apply beginning January 1, 2029. The bill would prohibit cosmetics and personal care products sold in New York from containing intentionally added chemicals on the bill’s restricted substances list. It would also require companies to evaluate whether ingredients listed as “fragrance,” “flavor,” “colorant,” or other functional classifications contain restricted chemicals, comply with contaminant thresholds such as lead limits, and monitor Department of Environmental Conservation (DEC) rulemaking that may add substances to the restricted list over time. The bill targets numerous chemicals that have already faced scrutiny in other jurisdictions and regulatory frameworks, including per- and polyfluoroalkyl substances (PFAS), parabens, phthalates, certain dyes, and preservatives.

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Causation Conundrums: Implications of Georgia Supreme Court’s Interpretation of Statute of Repose in Long-Term Product Use Cases

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When does the statute of repose clock start ticking on a product liability claim involving long-term repeat use of many individually purchased units of a product? According to the Georgia Supreme Court’s decision in Burroughs v. Strength of Nature Global, LLC, __ S.E.2d __, 2025 WL 2918923 (Ga. Oct. 15, 2025), the short answer is that the statute of repose starts anew for each individual unit. But, as Burroughs itself illustrates, that answer creates serious problems that may require the state’s legislature to intervene.

The Burroughs plaintiff alleged she developed uterine fibroids as a result of using chemical hair relaxers manufactured by the defendants repeatedly over nearly two decades. Specifically, she claimed she began using the products in 1995 at the age of six and used them six to eight times per year through 2014 (with one brief hiatus). She developed uterine fibroids in 2018 and filed suit in 2022. The defendants moved to dismiss the plaintiff’s strict liability claims on the basis that they were barred by the statute of repose. Georgia’s product liability statute of repose requires actions to be commenced within 10 years of “the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.” OCGA § 51-1-11(b)(2) (emphasis added). The trial court denied defendants’ motion. The court of appeals reversed, holding the plaintiff’s initial purchase of the first unit of the defendants’ products was a “first sale” that triggered the statute of repose and barred her filing an action more than 10 years later.

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Georgia Court of Appeals Confirms “First Sale” as Used in Statute of Repose Refers to Sale of First Unit of Repeatedly Purchased Products

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Georgia’s product liability statute of repose requires actions to be commenced within 10 years of “the date of the first sale for use or consumption” of the product at issue. OCGA § 51-1-11(b)(2) (emphasis added). While the concept of “first sale” is clear and intuitive in the context of a product that may be sold and then later resold, it may be somewhat less clear as applied to a consumable product that is purchased repeatedly over a lengthy period of time. Is the “first sale” of such a product the earliest transaction by which the plaintiff ever obtained the product, or does “first sale” merely refer to the initial purchase of each individual unit of the product as opposed to any subsequent resales? The Georgia Court of Appeals recently clarified that it is the former – “first sale,” for purposes of the statute of repose, refers to the “first sale” of any unit of the product to the plaintiff. Thus, subsequent purchases of a new unit of the product do not come with their own fresh repose periods.

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FDA Finalizes Voluntary Recall Guidance Imploring Companies to Be “Recall Ready”

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FDA recently issued final guidance regarding the initiation of voluntary product recalls and its related suggestions on how to be “recall ready.” The guidance – covering voluntary recalls of food, drugs, devices, biological products, cosmetics, and tobacco – emphasizes the importance of a company’s recall readiness at all stages of a product’s distribution chain and provides companies with suggested measures to prepare for and implement voluntary recalls. It also advises companies on best practices for working with FDA to initiate a timely voluntary recall.

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