# FDA Allows Unapproved E-Cigarettes & Skechers Lawsuit

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 26 May 2026, 32 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/3aa3c112-282c-4c6d-975a-b456017875f4/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Healthcare attorney Harry Nelson, a partner at Leech Tishman Nelson Hardiman, discusses the FDA allowing companies to sell unapproved electronic cigarettes and nicotine patches. Then Shawn Collins, a partner at Stradling and an expert in consumer litigation and enforcement, discusses a lawsuit against Skechers for allegedly sending deceptive promotional emails. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:08] Speaker 1: A new FDA rule will allow companies to sell unapproved
[0:12] Speaker 1: electronic cigarettes and nicotine patches, and that includes fruit flavored vapes,
[0:18] Speaker 1: which are especially appealing to kids. All the companies have
[0:22] Speaker 1: to do is submit an application that the agency has
[0:25] Speaker 1: agreed to review that goes against the way the FDA
[0:29] Speaker 1: has traditionally worked, where the approval process is normally rigorous
[0:34] Speaker 1: and involves multiple steps. According to the Associated Press, senior
[0:39] Speaker 1: officials in the agency's Tobacco Center were blindsided by the
[0:44] Speaker 1: new guidelines. Earlier this month, the FDA authorized fruit flavored
[0:49] Speaker 1: vapes for the first time. Of the more than one
[0:52] Speaker 1: point six million middle and high school students who currently vape,
[0:57] Speaker 1: nearly ninety percent use flavored East six ats, with fruit
[1:01] Speaker 1: flavors being the most popular, followed by candy, desserts or
[1:06] Speaker 1: other suites. My guest is healthcare attorney Harry Nelson, a
[1:10] Speaker 1: partner at Leech Tishman Nelson Hardiman. Harry tell us about
[1:14] Speaker 1: these new rules.
[1:16] Speaker 2: So we have this law, the Tobacco Control Act, which
[1:20] Speaker 2: requires that new tobacco products can't be legally marketed without
[1:24] Speaker 2: pre market authorization, and the law gives the FDA the
[1:27] Speaker 2: power to deny this pre market authorization unless there's a
[1:31] Speaker 2: showing that the product would appropriately protect the public health.
[1:36] Speaker 2: And so what's happened now is that the administration has said,
[1:39] Speaker 2: the FDA put out a guidance, a statement that it's
[1:42] Speaker 2: not going to prioritize enforcement against certain unauthorized e cigarette
[1:48] Speaker 2: products and nicotine oral nicotine pouch products. So and meaning
[1:51] Speaker 2: the government basically said, even though these products are not
[1:54] Speaker 2: legally on the market, the government is not going to
[1:59] Speaker 2: go after them. That's basically what happened in the last
[2:02] Speaker 2: couple of days here.
[2:03] Speaker 1: And this breaks with the FDA policy of requiring scientific verification.
[2:09] Speaker 2: Yeah, this is definitely a relaxation of the federal policy
[2:14] Speaker 2: of being tough on tobacco products and being concerned about
[2:18] Speaker 2: public health.
[2:19] Speaker 3: And it's basically the.
[2:20] Speaker 2: FDA saying this is a low priority and even though
[2:24] Speaker 2: what you're doing is not legal, let's call it at
[2:27] Speaker 2: best gray market. These products can stay on the shelves
[2:30] Speaker 2: the stores even though they're still in scientific review, even
[2:33] Speaker 2: though the FDA.
[2:34] Speaker 3: Has not ruled on them.
[2:36] Speaker 2: And this is really a flip from where we were,
[2:38] Speaker 2: you know, just a year and a half ago, where
[2:40] Speaker 2: the FDA rejected the idea that having an application on
[2:44] Speaker 2: file was sufficient to create a safe harbor to allow
[2:48] Speaker 2: these products to be out there. So previously the FDA
[2:50] Speaker 2: would not allow these products to be on shelves, and
[2:52] Speaker 2: now it sounds like the enforcement climate is really completely
[2:57] Speaker 2: gone one hundred and eighty degrees and the FDA is
[2:59] Speaker 2: going to basically soften this position and allow a new
[3:03] Speaker 2: lane kind of for grain market tobacco products.
[3:06] Speaker 1: I mean, is this odd timing because it was posted
[3:10] Speaker 1: just days before the former FDA commissioner resigned. Was it
[3:15] Speaker 1: pushed through? It just sounds like the timing is weird.
[3:19] Speaker 3: Yeah, it's interesting.
[3:20] Speaker 2: It definitely seems like this was This kind of reflects
[3:24] Speaker 2: a little bit of the chaos that is going on
[3:28] Speaker 2: in the FDA. A lot of the reporting around the
[3:31] Speaker 2: story has emphasized that the senior leadership within and the
[3:35] Speaker 2: staff within the Tobacco Center were basically blindsided and that
[3:40] Speaker 2: this appeared just before Commissioner McCary resigned. So there seems
[3:45] Speaker 2: to be a lot of upheaval and a little bit
[3:48] Speaker 2: of chaos at the FDA, and certainly nobody who's in
[3:52] Speaker 2: the Tobacco Regulation Group at the FDA saw this coming
[3:56] Speaker 2: or seems to be supportive of this new relax on action.
[4:00] Speaker 1: So the FDA spokesperson said, this approach strengthens protections against
[4:04] Speaker 1: youth nicotine addiction while supporting evidence based alternatives for adult
[4:09] Speaker 1: smoke or seeking to move away from combustible tobacco products whatever.
[4:14] Speaker 2: That it's interesting, right, Certainly, even the folks in the
[4:17] Speaker 2: administration who are supporting the relaxation of tobacco are trying
[4:21] Speaker 2: to emphasize that this is for adult products and that
[4:24] Speaker 2: they are not loosening standards on tobacco products that are
[4:28] Speaker 2: being used by miners. So they're trying to, you know,
[4:32] Speaker 2: still reserve the right to be more aggressive in enforcement
[4:36] Speaker 2: against products that appeal to teens and to focus on
[4:40] Speaker 2: just letting adults have more leeway and just not investing
[4:44] Speaker 2: enforcement dollars into this product market.
[4:47] Speaker 1: Hasn't the FDA resisted approving flavor vapes for kids, but
[4:53] Speaker 1: yet the mango and blueberry flavored vapes who are okayed
[4:57] Speaker 1: during the FDA Commissioner's last.
[5:00] Speaker 2: Week, right, there's, by the way, there's there's something like
[5:03] Speaker 2: over forty e cigarette products and already twenty of these
[5:06] Speaker 2: these like flavored pouch varieties out there. I think the
[5:10] Speaker 2: FDA has been trying to walk a line, and I
[5:12] Speaker 2: think the line shifted a little bit this week. But
[5:14] Speaker 2: I think even now, you know, the administration's position is
[5:17] Speaker 2: that protecting teen smokers from products that are clearly appealing
[5:24] Speaker 2: to kids is still a problem and still something they're
[5:26] Speaker 2: going to pursue. But the real message that they're trying
[5:28] Speaker 2: to emphasize, I think was loosening the rules on adult
[5:32] Speaker 2: tobacco products.
[5:34] Speaker 1: The number of underaged vapors has gone down. I don't
[5:38] Speaker 1: know if that plays any part in.
[5:39] Speaker 2: This, To be honest me, I'm not totally up to
[5:41] Speaker 2: speed on where underage vaping is. I know that a
[5:43] Speaker 2: lot of the you know, the efforts of the last
[5:46] Speaker 2: couple of years have definitely reduced use, particularly in and
[5:51] Speaker 2: around schools. There was a lot of attention obviously to
[5:54] Speaker 2: you know, the Nicodeen addiction risk, the potential effect on
[5:57] Speaker 2: brain development of like anxiety and add ADHD mood issues
[6:02] Speaker 2: coming up from these, and just the kind of significant marketing.
[6:06] Speaker 2: And we saw a lot of schools cracked down on this.
[6:10] Speaker 2: We saw like social media, you know, sort of really
[6:13] Speaker 2: tamping down, so it would not surprise me if there
[6:15] Speaker 2: has been a reduction, although I still think there's still
[6:18] Speaker 2: is clearly a significant use of flavored disposable vapes among teens,
[6:23] Speaker 2: and still a problem of you know, social networks being
[6:27] Speaker 2: used to get kids who are too young getting them vapes.
[6:31] Speaker 2: There still is a problem of you know, illegal retail
[6:34] Speaker 2: sales happening, and I think, honestly, I think one of
[6:37] Speaker 2: the big pieces of the story is that we're going
[6:39] Speaker 2: to see We're likely to see states, particularly filling the void,
[6:44] Speaker 2: you know, as we've seen in other areas of federal enforcement,
[6:47] Speaker 2: when the federal government sort of steps back a little bit,
[6:49] Speaker 2: We're going to see many states kind of step up
[6:53] Speaker 2: and crack down much more on this.
[6:55] Speaker 1: Right now, California, Massachusetts, New Jersey, New York, and Rhode
[6:59] Speaker 1: Island in for statewide bands on most are all flavored
[7:04] Speaker 1: vaping products, and other states have more limited bands. And
[7:08] Speaker 1: you're right that about one point sixty three million middle
[7:12] Speaker 1: and high school students currently vape. That's a decrease from
[7:16] Speaker 1: two point one three million in twenty twenty three, but
[7:20] Speaker 1: still a huge number, almost six percent of kids. Harry,
[7:26] Speaker 1: I'm wondering if these new rules have anything to do
[7:30] Speaker 1: with Trump, who when he came to office, promised that
[7:34] Speaker 1: he would save the vaping industry, and big tobacco companies
[7:39] Speaker 1: have made contributions to Trump and his causes.
[7:43] Speaker 2: Yeah, it's definitely there's no question that this is a
[7:46] Speaker 2: case where the federal government is sort of throwing a
[7:48] Speaker 2: bone to the tobacco industry that they're really giving them
[7:53] Speaker 2: a little bit of room here to ramp up sales
[7:57] Speaker 2: and signaling kind of a more permissive environ So I
[8:01] Speaker 2: do think this is clearly a big win for big
[8:05] Speaker 2: tobacco and a setback for everybody who invested in, you know,
[8:09] Speaker 2: public health a sort of anti tobacco efforts. So the
[8:12] Speaker 2: companies that are you know, particularly companies that have applications
[8:16] Speaker 2: or pending, are going to benefit by being able to,
[8:20] Speaker 2: you know, promote those products more. They don't have to
[8:23] Speaker 2: be as nervous about the you know, the unapproved status
[8:27] Speaker 2: of their applications. So those are going to be the
[8:29] Speaker 2: biggest winners within the tobacco industry.
[8:31] Speaker 1: Because I can't think of any reason to do this
[8:35] Speaker 1: as far as public health is concerned.
[8:39] Speaker 2: You know, I think this is a little bit of
[8:41] Speaker 2: a signal that the federal government is kind of moving
[8:45] Speaker 2: out of I don't know what you want to call it,
[8:47] Speaker 2: the nanny state, you know, sort of the it spends.
[8:50] Speaker 2: You know, a lot of the public health protections that
[8:53] Speaker 2: we see where we've seen federal you know, stepping back
[8:58] Speaker 2: have been about individual choice even where it's not consistent
[9:02] Speaker 2: with public health.
[9:03] Speaker 3: Right.
[9:03] Speaker 2: We've seen that with like federal rollbacks on environmental uh
[9:08] Speaker 2: and climate regulation. Right that I think I think we've seen, uh,
[9:12] Speaker 2: you know, we've seen it. We've seen we see we
[9:14] Speaker 2: see that the states are are getting more aggressive uh
[9:18] Speaker 2: and and and and then a lot of directions the
[9:21] Speaker 2: federal governments moving in the opposite direction. And I think
[9:24] Speaker 2: it partly is by by by some skepticism about broad
[9:29] Speaker 2: federal administrative power and ways in which when people perfectly
[9:33] Speaker 2: on the right are talking about smaller government, part of
[9:36] Speaker 2: what that means is less activist laws limiting commerce.
[9:41] Speaker 3: Right.
[9:41] Speaker 2: I think I think this is one of those examples.
[9:43] Speaker 1: Okay, stay with me, Harry. Coming up next on the
[9:46] Speaker 1: Bloomberg Law Show, we'll take a look at the legal
[9:49] Speaker 1: fight over the abortion pill. I'm June Grosso, and you're
[9:53] Speaker 1: listening to Bloomberg. A divided Supreme Court allowed a widely
[10:00] Speaker 1: used abortion pill to continue to be dispensed by mail
[10:03] Speaker 1: about two weeks ago, putting on hold a federal appeals
[10:07] Speaker 1: Court decision that had briefly required patients to make an
[10:11] Speaker 1: in person visit to a provider. In a one paragraph
[10:15] Speaker 1: order that gave no explanation, the justices granted requests from
[10:19] Speaker 1: the drugs manufacturers to keep it fully available while the
[10:23] Speaker 1: legal fight goes forward. Louisiana is seeking to upend the
[10:27] Speaker 1: FDA's decision during Joe Biden's presidency to permit remote prescriptions
[10:33] Speaker 1: for MiFi pristone, a drug the FDA first approved in
[10:37] Speaker 1: two thousand. The case could have upbended abortion access nationwide,
[10:42] Speaker 1: but the reprieve may only be temporary. The FDA under
[10:46] Speaker 1: President Donald Trump says it's conducting a safety review of
[10:50] Speaker 1: MiFi pristone, and it could try to impose new restrictions
[10:55] Speaker 1: down the road. I've been talking to healthcare attorney Harry Nelson.
[11:00] Speaker 1: Fight over MiFi pristone is going to come back to
[11:02] Speaker 1: the court again, isn't it.
[11:04] Speaker 2: I mean, my read on the Supreme Court decision is
[11:08] Speaker 2: that you know, clearly the Supreme Court does not want
[11:12] Speaker 2: to get in the way, you know, very clear that
[11:15] Speaker 2: the Supreme Court really doesn't want to revisit this, but
[11:19] Speaker 2: but clearly, you know, the States remain very you know,
[11:23] Speaker 2: actively involved in it. And so this is definitely not
[11:26] Speaker 2: going to be the last, the last case where the
[11:29] Speaker 2: Spring Court is dealing with mephipristone. The States are are
[11:32] Speaker 2: still going to keep arguing that the FDA is exceeding
[11:34] Speaker 2: its authority under the Food, Drug and Cosmetic Act, the
[11:37] Speaker 2: same exact claim that was made in this case, that
[11:39] Speaker 2: the FDA improperly loosened the risk Evaluation and Mitigation Studies
[11:45] Speaker 2: REMS restrictions and so and we're going to see you know,
[11:49] Speaker 2: continued fights right about how much deference the courts should
[11:53] Speaker 2: give the FDA on its scientific judgment. And we're going
[11:56] Speaker 2: to still going to see activist states, you know, abortion
[11:59] Speaker 2: restricts of states arguing that they have the right to
[12:03] Speaker 2: so second guests the FDA and that they can override
[12:07] Speaker 2: kind of a national drug approval based on their state policy.
[12:09] Speaker 2: So we're still in this environment where the states are
[12:12] Speaker 2: increasingly trying to compete in their different you know, regulatory
[12:17] Speaker 2: frameworks for this, and we're going to continue to see
[12:20] Speaker 2: a number of states trying to be more restrictive, blocking mailing,
[12:24] Speaker 2: blocking teleealth access, and this issue is not going anywhere.
[12:29] Speaker 2: And you know, I think for people on the you know,
[12:32] Speaker 2: on the reproductive rights protection side of this fight, I
[12:35] Speaker 2: think it is good news that the Supreme Court is
[12:38] Speaker 2: at least holding true to what it said when it
[12:41] Speaker 2: repealed re Vweight, which was that it really wanted to
[12:43] Speaker 2: send this issue back to the States and wasn't going to,
[12:46] Speaker 2: you know, to intervene to support broader restrictions. So this
[12:50] Speaker 2: is at least one way in which the Supreme Court
[12:52] Speaker 2: has lived up to that to that signal that it gave.
[12:55] Speaker 2: And so for all the frustration that so many people
[12:58] Speaker 2: have about the decision to get rid of Roe v. Wade,
[13:02] Speaker 2: I do think it's a positive sign that the Supreme
[13:04] Speaker 2: Court is not wanting to get in the way of
[13:08] Speaker 2: the FDA, not wanting to get in the way of pharmacies.
[13:10] Speaker 2: And by the way, one of the biggest things we
[13:12] Speaker 2: haven't spoken about is, you know, the question of whether
[13:14] Speaker 2: the FDA takeover will ultimately lead to restriction internally. That's
[13:20] Speaker 2: really an incredible tell on where the Trump administration sits
[13:24] Speaker 2: within this whole question.
[13:26] Speaker 1: How many studies were done to show that MiFi pristone
[13:29] Speaker 1: was safe, and now the FDA is doing a new study,
[13:32] Speaker 1: and Bloomberg News reported in December that the FDA was
[13:37] Speaker 1: slow walking its safety study until after the midterm elections,
[13:42] Speaker 1: although Health and Human Services deny the report.
[13:46] Speaker 2: Yeah, it's very interesting. This is clearly a place where
[13:49] Speaker 2: the administration is not in a hurry to create political upheaval.
[13:54] Speaker 2: Obviously this issue has been such a galvanizing one in
[13:58] Speaker 2: past election cycles, so the FDA has actually, you know,
[14:01] Speaker 2: I think a lot of people are surprised. A lot
[14:03] Speaker 2: of people thought that this administration would would reverse you know,
[14:07] Speaker 2: on the safety and effectiveness of mefipristone. It's been, by
[14:10] Speaker 2: the way, twenty six years since a clinical review, and
[14:14] Speaker 2: really there is no record of serious adverse events. So
[14:18] Speaker 2: the people who are saying that it's unsafe have to
[14:20] Speaker 2: point to its actual intended effect to claim that it's unsafe.
[14:24] Speaker 2: That it's unsafe essentially because it terminates pregnancies, right, So
[14:28] Speaker 2: it's interesting, you know, the FDA is clearly under you know,
[14:32] Speaker 2: competing political pressures, and it's clearly a much more complicated
[14:37] Speaker 2: landscape than a lot of people anticipated.
[14:40] Speaker 1: And what about rfk's position. Is he solidly in place
[14:45] Speaker 1: at the head of aj jess or is it wobbing.
[14:48] Speaker 2: It's super interesting that he has not been like it's
[14:51] Speaker 2: a really good question why. Clearly, is one of the
[14:54] Speaker 2: most visible and controversial members of this cabinet he is
[14:59] Speaker 2: he is not seem to be in jeopardy. I do
[15:02] Speaker 2: think that he has some there's several advantages he has.
[15:05] Speaker 2: He has because of the MAHA you know, make America
[15:08] Speaker 2: Healthy Again political base that remains very loyal to him.
[15:12] Speaker 2: He's got, he's got. There is I think some concern
[15:15] Speaker 2: about what his removal would mean to part of the
[15:18] Speaker 2: Trump you know, voting base. And he's remained aligned with
[15:23] Speaker 2: President Trump on a number of very populist themes about
[15:27] Speaker 2: you know, under investment in chronic disease, you know, the
[15:31] Speaker 2: food and chemical regulation, skepticism towards big pharma. So he's
[15:36] Speaker 2: got his anti establishment messaging is actually something that I think,
[15:39] Speaker 2: you know, resonates with President Trump. But I do think
[15:43] Speaker 2: he is less stable today than he was a year ago.
[15:47] Speaker 2: And clearly some of his most controversial appointees have already
[15:51] Speaker 2: been you know, forced to resign or withdrawn and We've
[15:54] Speaker 2: seen the courts blocking some of his vaccine related actions,
[15:58] Speaker 2: so he's he definitely seems to be in a weaker position,
[16:01] Speaker 2: even though he remains the public face of the you
[16:04] Speaker 2: know here and so I think he's he's navigating some
[16:08] Speaker 2: tricky waters in terms of, you know, the Maha populist
[16:12] Speaker 2: base that wants to see radical FDA reform on vaccines,
[16:17] Speaker 2: on confronting big pharma. He's got to navigate the traditional
[16:21] Speaker 2: stakeholders within healthcare who are very wary of him, and
[16:25] Speaker 2: of course all of the you know, Trump political operatives.
[16:28] Speaker 2: So I think in the near term it doesn't look
[16:30] Speaker 2: like he's going anywhere, but I wouldn't bet that, you know,
[16:33] Speaker 2: he's going to make it through the entire Trump second term.
[16:36] Speaker 1: Thanks so much for joining me tonight, Harry. That's healthcare
[16:39] Speaker 1: attorney Harry Nelson of Leech Tishman Nelson, Hardiman Sketchers is
[16:48] Speaker 1: facing a class action lawsuit seeking millions of dollars in damages.
[16:53] Speaker 1: A judge has refused to dismiss the lawsuit that accuses
[16:57] Speaker 1: the footwear and apparel company of repeated sending deceptive promotional
[17:02] Speaker 1: emails with phrases like the clock is ticking or today
[17:07] Speaker 1: only to pressure consumers into making purchases in a hurry.
[17:12] Speaker 1: For example, one email on May twenty sixth of last
[17:15] Speaker 1: year said long weekend savings and tonight in the heading,
[17:20] Speaker 1: but an email the next day said surprise, long weekend
[17:24] Speaker 1: savings extended for today and Sketchers is not the only
[17:29] Speaker 1: retailer facing lawsuits over deadline focused subject lines under Washington
[17:35] Speaker 1: State's Commercial Electronic Mail Act. Joining me is Sean Collins,
[17:39] Speaker 1: a partner at Straddling and an expert in consumer litigation
[17:43] Speaker 1: and enforcement. Sean tell us about this lawsuit.
[17:47] Speaker 4: So it's a Washington law that Washington has been enforcing
[17:53] Speaker 4: a lot lately. Effectively what catches a lot of people
[17:58] Speaker 4: off guard about this particular So the Washington passed this law.
[18:05] Speaker 4: It's predicated on the federal law, which is the can
[18:08] Speaker 4: Spam Act. So I don't know if you're familiar with
[18:11] Speaker 4: the can Spam Act, but it's something that people haven't
[18:14] Speaker 4: really talked about a lot lately. Can Spam Act was
[18:17] Speaker 4: passed back when we were still using fax machines, okay,
[18:21] Speaker 4: and so it was created because people were abusing fact
[18:25] Speaker 4: machines similar to how they abuse emails nowadays, where people's
[18:29] Speaker 4: fax machines. So I remember when I first started practicing law,
[18:32] Speaker 4: back in like ninety nine and two thousand timeframe, it
[18:35] Speaker 4: was my job as a young clerk to go over
[18:37] Speaker 4: to the fax machine and pull off all the factes
[18:39] Speaker 4: and then take them to the respective partners.
[18:42] Speaker 3: And you know, I would fall victim to it.
[18:45] Speaker 4: You go over there and there would be like this
[18:46] Speaker 4: headline that would come off on the facts, like, oh,
[18:50] Speaker 4: would you be interested in going to an Astros game today?
[18:52] Speaker 4: I was clerking in Houston at the time, and I
[18:54] Speaker 4: remember it would catch my attention.
[18:55] Speaker 3: I'm like, I would love to go to an Astro's game.
[18:57] Speaker 4: So then you pull it off, you start reading it
[18:59] Speaker 4: and had nothing to do with an Astros game. It's
[19:01] Speaker 4: them trying to sell you some type of bubblegum or
[19:04] Speaker 4: soda or.
[19:05] Speaker 3: Something like that.
[19:06] Speaker 4: And so they created the can Spam MAC because people
[19:09] Speaker 4: were tired of their fax machines getting clogged up with
[19:12] Speaker 4: unwanted solicitations and advertisements. So can Spam MAC was a
[19:16] Speaker 4: federal law that was passed that said, hey, stop clogging
[19:20] Speaker 4: up people's fax machines with unimportant stuff, and you have
[19:23] Speaker 4: an obligation to tell them what you want, all right,
[19:26] Speaker 4: So Washington passed this law to basically kind of update it,
[19:30] Speaker 4: bringing into the modern era whereby they don't want people
[19:35] Speaker 4: kind of duping people with emails, okay, and so Washington
[19:40] Speaker 4: has started to enforce this law.
[19:43] Speaker 3: So you'll see this lawsuit.
[19:44] Speaker 4: Is very focused on what's being presented to people in
[19:49] Speaker 4: the form of emails, Like, is the headline of your email,
[19:55] Speaker 4: you know, creating a false impression or a misleading lead
[20:01] Speaker 4: to the person that's the recipient of that email. So
[20:04] Speaker 4: obviously here they're focused on the fact that the headline
[20:07] Speaker 4: of these emails was creating a false time clock in
[20:10] Speaker 4: people's head today only the clock is ticking and you know,
[20:16] Speaker 4: long weekend savings end tonight, creating a false sense of urgency.
[20:20] Speaker 1: Tell us what Skechers argue to try to get the
[20:23] Speaker 1: case thrown out.
[20:24] Speaker 4: One of the arguments that the Skechers' attorneys tried to
[20:28] Speaker 4: make was the preemption argument, meaning that the federal can
[20:31] Speaker 4: Spam law preempts the Washington law, meaning that if I,
[20:35] Speaker 4: as a company Sketchers, if I'm complying with the federal law,
[20:38] Speaker 4: I shouldn't have to create a separate mechanism to comply
[20:41] Speaker 4: with the Washington law as well. Now, so the first
[20:45] Speaker 4: argument there was that the federal can Spam Act displaces
[20:48] Speaker 4: the state level claims. So the court rejected that argument. Now,
[20:51] Speaker 4: there was one other argument, which I think was actually
[20:53] Speaker 4: a very clever argument that was made by the Skechers.
[20:57] Speaker 3: Team was well, hey, you know, that loss.
[21:01] Speaker 4: Similar to the can Spam Act was effectively saying that
[21:05] Speaker 4: the information had to be false, meaning it was a
[21:09] Speaker 4: lie what you put in the in the heading. They
[21:12] Speaker 4: were basically saying that, you know, when we put today
[21:15] Speaker 4: only cell extended in the heading, that that was not
[21:19] Speaker 4: false or misleading because Sketchers was essentially saying, look, you know,
[21:25] Speaker 4: as a company, it's our prerogative if we want to
[21:27] Speaker 4: extend our cell, and that's actually a benefit for the consumer.
[21:31] Speaker 3: So typically in a consumer protection context, the.
[21:34] Speaker 4: Argument is is your conduct beneficial for the consumer or
[21:39] Speaker 4: is it detrimental to the consumer. They're saying, we're extending
[21:42] Speaker 4: a cell and even though the sale was supposed to
[21:45] Speaker 4: end on Memorial Day, we extended it to the following day,
[21:48] Speaker 4: the Tuesday after Memorial Day. So that's a net benefit
[21:51] Speaker 4: for the consumer because they're getting the extra twenty four
[21:53] Speaker 4: hours to make this purchase, and so the State of
[21:57] Speaker 4: Washington rejected that argument. I keep in mind that they
[22:00] Speaker 4: just basically rejected their motion to dismiss in this case,
[22:03] Speaker 4: so just you know, for context, they were just trying
[22:06] Speaker 4: to get went on emotion to dismiss, which is basically
[22:09] Speaker 4: saying you didn't even state claims that could withstand litigation.
[22:15] Speaker 4: And so the court was saying, I'm going to give
[22:17] Speaker 4: the plaintiffs an opportunity to prove these claims now in
[22:20] Speaker 4: a court of law, as opposed to dismissing them at
[22:23] Speaker 4: the pleading phase. So sketchers still has an opportunity to
[22:28] Speaker 4: prevail in this case. I think they will ultimately end
[22:31] Speaker 4: up prevailing in this case. But it was an interesting
[22:35] Speaker 4: interpretation of the law from the state, from the court,
[22:39] Speaker 4: just from the standpoint of, you know, effectively, the court
[22:45] Speaker 4: has said that even though what you're saying in your
[22:48] Speaker 4: heading might be literally true, meaning sale extended for twenty
[22:53] Speaker 4: four hours, don't miss out on the opportunity the planiffs.
[22:57] Speaker 4: So they're saying it was false from the standpoint of
[23:00] Speaker 4: it seemed like it was only a Memorial Day cell
[23:03] Speaker 4: and there may have been consumers that rushed to purchase
[23:06] Speaker 4: this over the weekend, when in reality, this was not.
[23:09] Speaker 3: A limited time sell, it was a cell that was
[23:12] Speaker 3: going to be going on for a while.
[23:13] Speaker 4: You just duped the consumer into believing that they had
[23:16] Speaker 4: to purchase now or else they would miss the opportunity.
[23:18] Speaker 1: Do we really think that consumers to consumers or the
[23:22] Speaker 1: plaintiffs went to a lawyer and said, we want to
[23:24] Speaker 1: sue over this, or is this a class action plaintiff's
[23:28] Speaker 1: lawyer looking for plaintiffs to file suit over this.
[23:32] Speaker 3: So that's a great question, So a little bit of both.
[23:36] Speaker 4: So these cases in California, they refer to them as
[23:40] Speaker 4: pricing law cases, and so I have been seeing numerous
[23:44] Speaker 4: I've probably seen ten of these over the past two
[23:47] Speaker 4: years from my clients here in the state of California,
[23:50] Speaker 4: because the state of California has a pricing law on
[23:52] Speaker 4: the books that basically says that you cannot offer a
[23:56] Speaker 4: sell price for longer than ninety days if you have
[24:00] Speaker 4: not sold that product at the actual retail price within
[24:03] Speaker 4: the last ninety days. So if I offer you June,
[24:07] Speaker 4: I tell you, I say, hey, I have this, you
[24:09] Speaker 4: know this skin care product that I'm offering, I typically
[24:13] Speaker 4: sell it for.
[24:14] Speaker 3: Forty nine ninety nine, but I'm only going to.
[24:17] Speaker 4: I'm going to put it on sale for nineteen ninety
[24:19] Speaker 4: nine for you if I have not sold that product
[24:23] Speaker 4: at forty nine ninety nine within the last ninety days.
[24:27] Speaker 3: The State of.
[24:28] Speaker 4: California says that is a false representation to a customer
[24:32] Speaker 4: because you're basically trying to create the mental impression that
[24:35] Speaker 4: they're getting a twenty dollars discount, when in reality, you've
[24:38] Speaker 4: never sold that product at the forty nine ninety nine
[24:41] Speaker 4: price point. It's always been nineteen ninety nine. But you're
[24:45] Speaker 4: making them believe they're getting a discount when in reality
[24:48] Speaker 4: you're just selling it at the actual price that it's worth,
[24:51] Speaker 4: which is nineteen ninety nine. So in California we call
[24:54] Speaker 4: them pricing law cases because you can't have a product
[24:58] Speaker 4: on sale perpetually.
[25:00] Speaker 3: Now, that case came out of Coals.
[25:02] Speaker 4: That was the first big case that happened like that,
[25:04] Speaker 4: and I want to say that was maybe ten or
[25:06] Speaker 4: twelve years ago. Coals got in trouble for that because
[25:09] Speaker 4: pretty much the entire Coals department store have price tags
[25:13] Speaker 4: on it with stripe through. Pricing is what is referred to,
[25:16] Speaker 4: and it makes the customer who's walking through the store think, oh,
[25:20] Speaker 4: this thing used to be ninety nine, ninety nine or
[25:22] Speaker 4: one hundred dollars and I'm now getting it for thirty bucks.
[25:25] Speaker 4: What a great deal, seventy percent off, when in reality
[25:28] Speaker 4: Coals has never sold that thing for one hundred dollars,
[25:31] Speaker 4: that the actual price is probably thirty dollars.
[25:34] Speaker 1: That seems more harmful to consumers are more deceptive than this,
[25:39] Speaker 1: which is what instead of buying it the day after
[25:43] Speaker 1: Memorial Day or whatever, I'm rushed to buy it buy
[25:46] Speaker 1: Memorial Day. I mean, it just seems like, what are
[25:48] Speaker 1: the damages here or is it just the damage is
[25:51] Speaker 1: stated under this law because it doesn't seem like they
[25:53] Speaker 1: lost really anything.
[25:55] Speaker 4: That's true, And that's why I think Sketchers is making
[25:58] Speaker 4: great arguments. I think ultimately they probably going to prevail,
[26:01] Speaker 4: but great question. So in those California pricing cases, there's
[26:06] Speaker 4: usually a dual claim, and so all of my clients
[26:09] Speaker 4: using and look, there's no law that says you can't
[26:11] Speaker 4: do this, but you've probably.
[26:13] Speaker 3: Seen it when you're checking out online.
[26:15] Speaker 4: Sometimes they'll put up a timer or a clock and
[26:18] Speaker 4: it says this price is only available for the next
[26:20] Speaker 4: ten minutes, and then that timer's sitting right there above
[26:23] Speaker 4: the purchase button and it's counting down on you, and
[26:26] Speaker 4: then it gets down to two or three minutes, and
[26:28] Speaker 4: as a consumer, you feel a sense of urgency to
[26:31] Speaker 4: purchase now so I don't miss this seventy dollars discount.
[26:34] Speaker 3: So the courts are kind of split.
[26:36] Speaker 4: The circuits are split on it as well as to
[26:38] Speaker 4: whether or not a timer is unlawful, because there's no
[26:42] Speaker 4: statute that says a timer is unlawful. So what Washington
[26:46] Speaker 4: is doing right now, they're trying to use this Washington
[26:50] Speaker 4: law to effectively say timers or representations that a sale
[26:55] Speaker 4: is for a limited time only are false and misleading
[26:59] Speaker 4: because you are basically pushing.
[27:01] Speaker 3: A consumer into purchasing something that they may.
[27:04] Speaker 4: Otherwise not want, but they're purchasing for fear of missing
[27:09] Speaker 4: out on the discount, and they're saying you're creating a
[27:12] Speaker 4: false narrative about how long this discount will be available
[27:15] Speaker 4: to them.
[27:16] Speaker 3: That's the allegation here against sketchers.
[27:18] Speaker 1: This is not the only lawsuit like this.
[27:20] Speaker 4: There are others like this in Washington, So this is
[27:23] Speaker 4: not new, but it's new from the standpoint that Washington
[27:26] Speaker 4: is kind of following suit with California. So in the
[27:30] Speaker 4: absence of having the pricing law that California has, they're
[27:33] Speaker 4: trying to use their own version of this law to
[27:37] Speaker 4: make it apply to representations in banners of emails that
[27:42] Speaker 4: create the false impression that a seal is about to expire.
[27:46] Speaker 1: Have any of these cases been appealed beyond the trial
[27:50] Speaker 1: court level?
[27:51] Speaker 3: They have, like this Sketcher's case.
[27:54] Speaker 4: One of the reasons why you're starting to see it
[27:56] Speaker 4: more prevalent now is because there was a Washington Supreme
[27:59] Speaker 4: Court case in twenty twenty five.
[28:01] Speaker 3: It was Brown versus Old Navy.
[28:03] Speaker 4: And Old Navy was accused of the exact same thing
[28:05] Speaker 4: that Sketchers is being accused of here right now, which
[28:09] Speaker 4: is effectively saying that the state's email marketing law covers
[28:12] Speaker 4: not just whether a message is commercial in nature, but
[28:15] Speaker 4: also whether the claims about the promotion.
[28:17] Speaker 3: Dates are accurate.
[28:18] Speaker 4: And so, like I say, the can SPAMAC came from
[28:21] Speaker 4: the standpoint of federal law was created back in the
[28:25] Speaker 4: eighties and nineties when people were trying to say, hey,
[28:27] Speaker 4: stop sending commercial advertisements over my fax machine.
[28:30] Speaker 3: This fact machines for business.
[28:32] Speaker 4: Then it pivoted to stop sending people emails to their
[28:36] Speaker 4: business account when you're trying to solicit them for commercial purposes,
[28:40] Speaker 4: when it's supposed to.
[28:41] Speaker 3: Be designed for business.
[28:42] Speaker 4: Now they're trying to say that this Washington marketing law
[28:46] Speaker 4: covers messages that are not just commercial in nature. So
[28:49] Speaker 4: it's not focused on whether or not somebody's unlawfully soliciting you,
[28:53] Speaker 4: but it's also focused on whether or not people are
[28:55] Speaker 4: making false claims in the email marketing context. So they're
[29:00] Speaker 4: focusing on whether or not these promotion dates are.
[29:02] Speaker 1: Accur How forcefully has Washington been taking action under this law.
[29:08] Speaker 4: So, like I say, it was the Supreme Court case,
[29:10] Speaker 4: it was the Old Navy case, the Brown versus Old
[29:12] Speaker 4: Navy decision that am bold in the state of Washington.
[29:16] Speaker 4: So I'll say, you know, I have a state attorney
[29:19] Speaker 4: general practice. That's one of my big core practice areas
[29:22] Speaker 4: here in my law firm. You know, historically the states
[29:25] Speaker 4: that are the most aggressive when it comes to the
[29:28] Speaker 4: Attorney General's office and the consumer protection division within that
[29:31] Speaker 4: Attorney's general office, California and New York have always historically
[29:36] Speaker 4: been the most aggressive. For obvious reasons. They have the
[29:38] Speaker 4: biggest marketplaces. So there's forty million people in the state
[29:42] Speaker 4: of California. If we were on economy, we'd be the
[29:44] Speaker 4: fourth or fifth largest economy in the world. So obviously
[29:46] Speaker 4: our Consumer Protection Division acts a lot like a mini FTC,
[29:51] Speaker 4: same thing with New York As. Texas would be third.
[29:53] Speaker 4: But then Washington's right up there in terms of the aggressiveness.
[29:56] Speaker 4: So I'm saying that from this standpoint of right now,
[29:59] Speaker 4: Washington about over a hundred of these lawsuits pending against retailers,
[30:04] Speaker 4: basically alleging the same thing that they allege against sketchers,
[30:07] Speaker 4: that they're deadline focused subject lines. You know, the headline
[30:11] Speaker 4: up there's a deadline on this deal, you know, followed
[30:14] Speaker 4: by extensions or repeats of the same sales. They're saying
[30:18] Speaker 4: that that's false and misleading, and so I think everybody
[30:22] Speaker 4: should keep an eye on this for sure, especially if
[30:25] Speaker 4: you trying to sell products in the state of Washington,
[30:27] Speaker 4: because I don't think that the Attorneys General office in
[30:31] Speaker 4: Washington or the planet is born on Washington, They're not
[30:34] Speaker 4: going to slow Down's going to be more of these cases,
[30:36] Speaker 4: for sure. You know, I have lots of clients that
[30:38] Speaker 4: get sued for having timers on their their websites, and
[30:42] Speaker 4: there's no law that says.
[30:43] Speaker 3: It's not lawful.
[30:44] Speaker 1: I hate those timers, gotten to the point where I
[30:46] Speaker 1: don't even believe them.
[30:47] Speaker 3: It's like, you know what, if I'm not.
[30:48] Speaker 4: Ready to purchase, or if I still want to do
[30:50] Speaker 4: some other price comparisons, so be it.
[30:52] Speaker 3: I'll find the deal somewhere else, you know, So I
[30:55] Speaker 3: ignore them.
[30:56] Speaker 4: But you know, look, I've been presented with some data
[31:00] Speaker 4: from Attorney's General Offices consumer data, So Attorney's General would
[31:04] Speaker 4: like the consumer protection divisions of these offices. They do
[31:07] Speaker 4: a lot of market research, and there's a lot of
[31:08] Speaker 4: market research that suggests that that timer has a significant
[31:14] Speaker 4: influence on consumers making the decision to purchase the product.
[31:17] Speaker 1: I can see why. Thanks so much, Sean. That's Sean Collins,
[31:22] Speaker 1: a partner at Straddling. And that's it for this edition
[31:25] Speaker 1: of the Bloomberg Law Show. Remember you can listen to
[31:27] Speaker 1: all the latest legal news anytime on our Bloomberg Law podcasts.
[31:32] Speaker 1: You can find them on Apple Podcasts, Spotify, or at
[31:35] Speaker 1: Bloomberg dot com, Slash podcasts, Slash Law and attorneys looking
[31:40] Speaker 1: for legal research, whether you're an in house counsel or
[31:44] Speaker 1: in private practice. Bloomberg Law gives you the edge with
[31:48] Speaker 1: the latest in AI powered legal analytics, business insights, and
[31:52] Speaker 1: workflow tools. With guidance from our experts, you'll grasp the
[31:56] Speaker 1: latest trends in the legal industry, helping you at achieve
[32:00] Speaker 1: better results for the practice of law, the business of law,
[32:04] Speaker 1: the future of law. Visit Bloomberg law dot com. I'm
[32:08] Speaker 1: June Grosso. Stay with us. Today's top stories and global
[32:12] Speaker 1: business headlines are coming up right now.

Shows are listed from Apple Podcasts' charts and directory, and Podcast Index where it is used. Every show and episode belongs to its publisher and plays from the publisher's own feed; this site hosts none of them.