By: David R. Gabor

Professor Michael L. Marlow of Cal Poly San Luis Obispo recently published a preview of his paper on cancer rates and Proposition 65 entitled, "Too Much (Questionable) Information?" See Wall Street Journal, page A13, January 21, 2014.

Proposition 65 is the popular name for the California Safe Drinking Water and Toxic Enforcement Act of 1986, codified at California Health & Safety Code section 25249.7, et seq. This now-infamous California voter initiative is why California residents and visitors alike are accosted by signage on physical locations such hotel lobbies and parking garages as well as on certain commercial items such as screwdrivers and soldering paste, threatening that they are exposed to toxic levels of carcinogens or reproductive toxicants by entering the property or using the product.


Continue Reading Proposition 65 – Twenty-Seven Years Later And Still No Observable Effect

By:David Gabor

On December 30, 2013, the Federal Court of Appeals, in Allergan, Inc. v. Athena Cosmetics, Inc., et al., an as-yet unpublished decision, affirmed a California District Court ruling that has the potential significantly to affect advertising law and the use of the California unfair competition statute at B&P Code §17200, et seq. to regulate commerce. http://www.cafc.uscourts.gov/images/stories/opinions-orders/13-1286.Opinion.12-26-2013.1.PDF In that case, the Federal Circuit affirmed that a California unfair competition claim is limited in injunctive effect to California only.

The key facts are as follows. Amgen, the manufacturer of Latisse eyelash thickener, sued Athena for its competing RevitaLash product, by asserting a number of federal patent and California Section 17200 unfair competition claims. The issue was whether RevitaLash could be marketed as a medical product that would grow and lengthen eyelashes.  Amgen sued because its own brand is the only product presently approved by the FDA to grow eyelashes.


Continue Reading The Long Lashes of the Law: The Federal Circuit Rejects Nation-wide Application of An Injunction Based on California Unfair Competition Statutes

 By: David Gabor

The FDA defines electronic cigarettes, also known as e-cigarettes, "e-cigs" or "vapes" (as in vapors), as "battery operated products designed to deliver nicotine, flavor and other chemicals. They turn nicotine, which is highly addictive, into a vapor that is inhaled by the user." http://www.fda.gov/NewsEvents/PublicHealthFocus/ucm172906.htm.

Selling and advertising e-cigarettes, now more commonly known as "vaping," presents an array of legal issues. It has grown into an industry estimated to be at annualized sales of $2 billion a year — and growing. David Gabor, a member of the advertising group at Weintraub Tobin, has represented several brands of e-cigarettes, and understands the issues it faces in terms of marketing and advertising such products.


Continue Reading What Are You Smoking? Notes on the increase in state and local regulation of e-cigarettes

Most of us have become familiar with the terms and conditions printed on the back of the ticket that is obtained when parking our cars in public lots. We all are familiar with the caption at the top of the ticket proclaiming “This contract limits our liability, please read it.”  Having parked my car hundreds of times in public parking lots, each time receiving a small ticket informing me of this proclamation, I now scandalously admit that I have never read these terms. Yet, if a dispute were to ensue regarding the terms and conditions of my use of public parking, the dispute would likely center around the terms and conditions that I have carelessly ignored in cavalier fashion. While I’m not suggesting that we review, analyze, revise and negotiate the boilerplate terms thrust upon us in the context of public parking, I mention this frequently overlooked contract relationship to demonstrate that we often may enter into contracts with others, while giving little thought or consideration to the terms we have accepted.


Continue Reading This Contract May Cause You Unlimited Liability – Please Read It