California Attorney Tom Martin’s Law Blog

Mattel Inc. announced its third major recall of Chinese-made toys in little more than a month, including Barbie doll accessories, GeoTrax locomotive line and Bongo Band toys because of excessive amounts of lead-tainted paint.

A complete list of recalled toys is available here.

675,000 recalled Barbie accessories include the Barbie Dream Puppy House, which had lead paint on the dog; the Barbie Dream Kitty Condo playset, which had lead paint on the cat; and the Barbie table and chairs kitchen playset, which had lead paint on the dog and dinner plates. The recalled Barbie accessories were sold between October 2006 and August of this year. No Barbie dolls were included in the action.

The recall covers 90,000 units of Mattel’s GeoTrax locomotive line and 8,900 Big Big World 6-in-1 Bongo Band toys, both from the company’s Fisher-Price brand. The Big Big World products were sold nationwide from July through August of this year, while the GeoTrax toys were sold from September 2006 through August of this year. (Source: AP.)

Lead can cause brain damage when ingested by young children. Under current regulations, children’s products found to have more than .06 percent lead are subject to a recall. For more information on health hazards associated with lead exposure from toys, click here.

“The only thing more frightening than these tainted toys from China falling into the hands of children is how powerless the very agency in charge of consumer protection is to stop it,” said Sen. Charles E. Schumer (D-N.Y.). (Source: Washington Post.)

If you purchased any of the recalled toys, you may have a legal claim. For further information, feel free to contact the Law Office of Thomas Glenn Martin by clicking here.

Another Mattel recall targets two categories of toys:

(1) 436,000 Chinese-made die-cast toy cars depicting the character Sarge from the animated film “Cars” because they are covered with lead paint; and

(2) 18.2 million other Chinese-made toys because their small, powerful magnets could harm children if swallowed.

About half of the toys in each recall were distributed in the United States.

In a New York Times Article, Robert A. Eckert, Mattel’s chairman and chief executive, was quoted as having said in a conference call: “No system is perfect… There’s no guarantee that we will not be here again.”

The lead-paint recall was Mattel’s second in less than a month of lead-tainted toys made in China. Together, the recalls have thrust the maker of Barbie dolls and Hot Wheels cars into the heart of rising concern over products made in low-cost factories in China. Last month’s recall of toys with lead paint included some based on characters from “Sesame Street” and “Dora the Explorer.”

The magnetic toys involved in the new recall included 63 products that, though produced in China, were recalled because of a design flaw on Mattel’s part, not a problem with its Chinese contractors.The magnetic toys had been produced since 2002 and sold before January 2007. They include 44 different Polly Pocket toys, 11 Doggie Day Care toys, 4 Batman toys, a One Piece toy, and 2 Barbie toys. (Source: NY Times.)

If you purchased any of the recalled toys, you may have a legal claim. For further information, feel free to contact the Law Office of Thomas Glenn Martin by clicking here.

Toy giant Fisher-Price announced a worldwide recall of about a million toys — including the popular Big Bird, Elmo, Dora and Diego characters — because they may contain excessive amounts of lead in their paint.

The company says the recall includes 83 types of its plastic preschool toys sold in the United States between May and August. A complete list of tainted toys can be found here.

In an interview with The Associated Press, David Allmark, general manager of Fisher-Price, said the problem was detected by an internal probe and reported to the Consumer Product Safety Commission. The recall is particularly alarming since Mattel, known for its strict quality controls, is considered a role model in the toy industry.

Fisher-Price and the commission issued statements saying parents should keep suspect toys away from children and contact the company. Allmark said the recall was troubling because Fisher-Price has had a long-standing relationship with the Chinese vendor, which had applied decorative paint to the toys. Allmark said the company would use this recall as an opportunity to put even better systems in place to monitor vendors whose conduct does not meet Mattel’s standards.

“Anytime a company brings a banned hazardous product into the U.S. marketplace, especially one intended for children, it is unacceptable,” said Nancy Nord, acting chair of the Consumer Product Safety Commission. “Ensuring that Chinese-made toys are safe for U.S. consumers is one of my highest priorities and is the subject of vital talks currently in place between CPSC and the Chinese government.” (Source: CNN.com.)

Fisher-Price and the Consumer Product Safety Commission are telling parents to keep suspect toys away from their kids and to contact the company with any questions.

The recall involving lead paint is a first for Fisher-Price and parent company Mattel.

If you purchased any of the recalled toys, you may have a legal claim. For further information, feel free to contact the Law Office of Thomas Glenn Martin by clicking here.

Six months ago, dozens of serious injuries prompted the recall of nearly a million Hasbro Easy-Bake Ovens.

Since then, according to the Consumer Product Safety Commission, only a small number of ovens have been returned. Hasbro has received reports of nearly 250 more incidents of children getting their hands or fingers caught in the ovens: 77 incidents involved burns, including 16 second- and third-degree burns, 1 burn required the partial amputation of a 5-year-old girl’s finger.

A second recall has been issued.

The latest CPSC alert says the recalled models are purple and pink model number 65805. They were made in China and sold after May 2006 at Toys “R” Us, Wal-Mart, Target and other major retailers.

Consumers are urged to take the products away from children immediately. The ovens may be returned for a voucher that can be used to get a Hasbro product of equal value — about $25. More specific information is available on Hasbro’s website.

The FDA is warning consumers to throw out all toothpaste made in China after finding a poison commonly used in anti-freeze in toothpaste it checked in three U.S. cities.

FDA said brands of toothpaste from China that contain diethylene glycol (DEG) include: Cooldent Fluoride; Cooldent Spearmint; Cooldent ICE; Dr. Cool, Everfresh Toothpaste; Superdent Toothpaste; Clean Rite Toothpaste; Oralmax Extreme; Oral Bright Fresh Spearmint Flavor; Bright Max Peppermint Flavor; ShiR Fresh Mint Fluoride Paste; DentaPro; DentaKleen; and DentaKleen Junior. (Source: FDA FAQ.)

According to the New York Times, the agency said it had found DEG in toothpaste sold at a Dollar Plus retail store in Miami under the brand name ShiR Fresh. It said nine other brands also contained the sweet, syrupy chemical and warned the products had a “low but meaningful risk of toxicity and injury,” especially when used by children or individuals with kidney or liver disease.

But diethylene glycol was not listed on the label of the toothpaste found in the Miami store. Its presence was detected only because the FDA began testing imported Chinese toothpaste last month. That precaution was prompted by the discovery in Latin America of tens of thousands of tubes of tainted toothpaste made in China.

Over the years, counterfeiters have found it profitable to substitute diethylene glycol for its chemical cousin, glycerin, which is usually more expensive. Glycerin is a safe additive commonly found in food, drugs and household products. In toothpaste, glycerin is used as a thickening agent.

Chinese regulators said their investigation of toothpaste manufacturers there had found they had done nothing wrong. Chinese officials said small amounts of diethylene glycol could be safely used in toothpaste.

The FDA said diethylene glycol in any amount was not suitable for use in toothpaste. (Source: NY Times.)

At a press conference, federal officials said the contaminated pet-food ingredient from China that has sickened dogs and cats nationwide was wheat flour spiked with melamine.

The Food and Drug Administration theorizes the wheat flour was spiked with melamine to make it look more protein-rich, thus more valuable, than it was. China has admitted two companies exported melamine-tainted product. The FDA also suspects that melamine and melamine compounds in the flour are creating a toxic brew that causes pets’ kidneys to fail.

The recalls’ scope has been vast. The FDA’s Pet Food Recalls List contains more than 5,800 products. The FDA has received unconfirmed reports of 4,150 cat and dog deaths since the first recalls in March.

China’s response? “There is no clear evidence showing that melamine is the direct cause of the poisoning or death of the pets,” the Chinese Ministry of Foreign Affairs argued in a prepared statement.

(Source: USA Today; NPR report: Pet Food Deaths: FDA Blocks Gluten from China.)

Proposition 64 placed certain new restrictions on standing to bring a UCL action. A private UCL plaintiff now must show she has suffered “injury in fact.” Amended section 17204 provides, in pertinent part:

Actions for any relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction … by any person acting for the interests of itself, its members or the general public who has suffered injury in fact and has lost money or property as a result of such unfair competition.

One question presented by the amendment has been whether the UCL now requires “injury in fact” AND a “loss of money or property” to establish standing, or whether the two concepts are disjunctive, i.e., “injury in fact” OR a “loss of money or property.”

Federal authority on Article III standing, on which the amendment is based, sometimes uses the two concepts interchangeably, implying that “injury in fact” and “loss of money or property” are two sides of the same coin.

In Buskirk v. Greenlight Financial Services, B189857 (Cal. App. 12/12/2006), the Second District of the Court of Appeal agreed with this latter view and provided much needed guidance regarding the UCL’s new standing requirement:

Turning to the question whether appellant demonstrated standing, section 17204 and section 17535 provide that actions may be prosecuted by a person “who has suffered injury in fact and has lost money or property.” Neither party offers any particular insight into the meaning of that phrase, and there is little in the published authority.

An indication of the proper interpretation is revealed in the “findings and declarations of purpose” contained in the introduction to Proposition 64. There, it stated that the people of the State of California had made certain findings, including: (1) the unfair competition laws [defined as both section 17200 et seq. and section 17500 et seq.] “are intended to protect California businesses and consumers from unlawful, unfair, and fraudulent business practices” and (2) “[f]rivolous unfair competition lawsuits clog our courts and cost taxpayers” and also “cost California jobs and economic prosperity, threatening the survival of small businesses and forcing businesses to raise their prices or to lay off employees to pay lawsuit settlement costs or to relocate to states that do not permit such lawsuits.” (§ 17203, Historical and Statutory Notes.) The introduction further stated that “[i]t is the intent of California voters in enacting [Proposition 64] to eliminate frivolous unfair competition lawsuits while protecting the right of individuals to retain an attorney and file an action for relief” and “to prohibit private attorneys from filing lawsuits for unfair competition where they have no client who has been injured in fact under the standing requirements of the United States Constitution.” (Ibid.)

….

Federal authorities provide guidance concerning a plaintiff’s responsibilities when issues of standing arise. A plaintiff must demonstrate (1) that he or she has suffered an injury in fact; (2) that the injury is traceable to the challenged actions of defendant, and (3) that the injury can be redressed by a favorable decision. [citation omitted] An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized [citations] and (b) ‘actual or imminent, not, ‘conjectural’ or ‘hypothetical.’” [citation omitted] Standing is subject to attack at any point in the litigation, and the plaintiff bears the burden of supporting standing “in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” [citation omitted] To withstand a motion for summary judgment, the plaintiff must demonstrate that evidence exists to permit a factual finding that he or she has standing. [citation omitted] (emphasis added.)

Thus, a demonstration of an injury in fact, traceability, and redressability is sufficient to establish standing under Article III and the UCL.

The Law Office of Thomas Glenn Martin and Green Welling LLP today filed a class action suit in the United States District Court for the Central District of California against New Century Financial Corporation (”New Century Financial”) (NYSE: NEW) and certain of its officers and directors, on behalf of all persons or entities who purchased the common stock of New Century Financial during the period between May 4, 2006 and February 7, 2007, inclusive (the “Class Period”).

A February 7, 2007 New Century Financial press release announced that the Company would restate its consolidated financial results for the quarters ended March 31, June 30, and September 20, 2006 to correct errors in its application of GAAP regarding the Company’s allowance for loan repurchase losses. New Century stated that it expected the impact of the restatement to result in a reduction on net earnings for each of the first three quarters of 2006. On this news, shares of New Century Financial fell 35%, to $19.58 on the New York Stock Exchange.

If you are a shareholder who purchased stock in New Century Financial during the Class Period, you have until April 7, 2007 to move the Court to appoint you as lead plaintiff. Any member of the proposed Class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Lead plaintiffs must meet certain legal requirements.

If you wish to discuss this action, review a copy of the Complaint, or have any questions regarding this matter, you may contact the Law Office of Thomas Glenn Martin by clicking here.

The food industry has no reasonable excuse for failing to reduce the levels of acrylamide in food.

1. Dipping potato chips or fries in a solution prepared from a bamboo leave extract for while before subject to thermal processing can significantly reduce the formation of acrylamide. (Source: Zang, Y., et al., “Addition of Antioxidant of Bamboo Leaves (AOB) Effectively Reduces Acrylamide Formation in Potato Crisps and French Fries,” Journal of Agricultural and Food Chemistry, (2007) 55 (2) 523 -528.)
2. Immersion of potato strips in distilled water decreased the acrylamide formation after frying without reducing significantly their glucose and asparagine content. (Source: Pedreschi, F., et al., Acrylamide reduction under different pre-treatments in French fries, Journal of Food Engineering, (2007) 79 (4) 1287-1294.)
3. Dipping potato cuts in a citric acid solution for 1 hour before frying showed 73.1% and 79.7% inhibition of acrylamide formation in french fries. (Source: Jung, M.Y., et al., “A Novel Technique for Limitation of Acrylamide Formation in Fried and Baked Corn Chips and in French Fries,” Journal of Food Science (2003) 68 (4), 1287–1290.)
4. Vacuum frying reduced acrylamide formation by 94%. (Source: Granda, C., et al., “Reduction of Acrylamide Formation in Potato Chips by Low-temperature Vacuum Frying,” Journal of Food Science (2004) 69 (8), 405–411.)

Happy holidays to all! Blog to resume in the new year.