Shop Safe Act vagueness implicates all industries and causes uncertainty

[Megan, Christopher Ford, Debevoise & Plimpton LLP Counsel, Kate Saba, Debevoise & Plimpton LLP Associate, Hannah Beattie, Debevoise & Plimpton LLP Associate, 4/20/2024, World Trademark Review, “Does the US SHOP SAFE Act go too far in shifting liability? ”, https://www.worldtrademarkreview.com/article/does-the-us-shop-safe-act-go-too-far-in-shifting-liability, accessed 7/11/2024, LR]

The SHOP SAFE Act’s broad and vague “health and safety” definition

The SHOP SAFE Act purports to be limited in scope, applying only to consumer products “that implicate health and safety”. But these terms are defined so broadly that, in practice, it is likely marketplaces would have to behave as though all products are covered by the act.

Under the act, a consumer product implicates health and safety if use can lead to “illness, disease, injury, serious adverse event, allergic reaction, or death”. A 2020 Department of Homeland Security report on combatting trafficking in counterfeit goods provided extensive examples of these types of goods including toys, cosmetics, sports jerseys, jewellery, purses, and iPhone adapters. Indeed, virtually all consumer goods could cause injury if they are not produced safely, so this definition would have few practical limits. A counterfeit LEGO could pose a choking hazard. A counterfeit t-shirt could be made or washed with dangerous chemicals. A counterfeit perfume could cause an allergic reaction.

Though the act is rightfully concerned with the potential dangers associated with counterfeit products, these expansive and vague definitions leave marketplaces in a grey zone of not knowing exactly what will be covered.