The State AG Report Weekly Update August 18, 2016

Breaking News

Former Colorado Attorney General Ken Salazar Named as Chair of Clinton’s Transition Team

  • Hillary Clinton’s campaign announced that former Colorado AG Ken Salazar will chair Clinton’s White House transition team. Salazar will chair the transition team responsible for planning a Clinton administration, and will be responsible for vetting potential agency leaders and officials. After serving as Colorado’s AG from 1999 to 2005, Salazar became a U.S. Senator (2005 to 2009) before being nominated by President Barack Obama to serve as Secretary of the Interior (2009 to 2013).
  • In addition, former Michigan AG Jennifer Granholm was named one of four co-chairs, together with former National Security Advisor Tom Donilon and two longtime advisors to Hillary Clinton, Neera Tanden and Maggie Williams. Granholm served as AG from 1998 to 2002, when she was elected Governor, a position she held for two terms (2003-2011).


Pennsylvania’s Governor Nominates New Attorney General

  • Pennsylvania Governor Tom Wolf today nominated Pennsylvania Inspector General Bruce Beemer to serve as the state’s next Attorney General, pending confirmation by the state Senate. Beemer would replace AG Kathleen Kane, who resigned following her conviction for perjury and other charges earlier this week.
  • Governor Wolf had appointed Beemer to the Inspector General’s post last month after Beemer left his position as First Deputy of the Criminal, Civil, and Public Protections Division in the AG’s office. He is also a former Deputy District Attorney.
  • If Beemer is confirmed as Attorney General, he reportedly will resume his role as Inspector General once a new AG is elected and sworn into office in 2017.


Consumer Protection

FTC and USDA to Host Roundtable on Consumer Perceptions of “Organic” Claims for Non-Agricultural Products

  • The Federal Trade Commission ("FTC") and U.S. Department of Agriculture (“USDA”) will co-host a roundtable in Washington, D.C., on October 20 to discuss consumer perceptions of “organic” claims for non-agricultural products.
  • The roundtable discussion will focus on three topics: (1) organic claims for products and services not regulated under the USDA Agricultural Marketing Service’s National Organic Program; (2) an FTC study on organic claims; and (3) options to address “potential consumer deception.”
  • The roundtable, which is open to the public, will feature consumer advocates, industry representatives, and academics.


Iowa Attorney General Settles with Marketing Company Over Alleged Violations of Prior Settlements

  • Iowa AG Tom Miller reached a settlement with Trilegiant Corporation and its parent company, Affinion Group, Inc., to resolve allegations that the company violated a 2013 multistate consent judgment and a separate Assurance of Voluntary Compliance with Iowa, in which the company agreed to revise its business practices and comply with state consumer protection laws.
  • According to the AG’s office, Trilegiant allegedly violated the agreements by enrolling Iowans in discount club and membership programs through telemarketers who failed to make required legal disclosures. The company also allegedly disguised the unlawful sales by requesting that Iowa consumers use an out-of-state address.
  • Under the terms of the consent judgment, Trilegiant must pay $300,000 to the state, refund Iowa consumers, and cease telemarketing operations in Iowa.


New York Attorney General Settles with Tanning Company Over Alleged False Health Claims

  • New York AG Eric Schneiderman reached a settlement with Total Tan, Inc., to resolve allegations the company violated consumer protection laws and New York tanning regulations.
  • According to the complaint, Total Tan’s alleged misconduct included representing to customers that indoor tanning proffered health benefits through increased Vitamin D intake, claiming indoor tanning health risks were exaggerated, and failing to provide free protective eyewear to customers.
  • Under the terms of the settlement, future misrepresentations and tanning regulation violations will be subject to penalties of $5,000 per day per misrepresentation and $500 per violation, respectively. This settlement is the latest that AG Schneiderman has entered into with tanning salons over health misrepresentations.


Health Care

Kentucky Attorney General Latest to Sue Medical Product Manufacturer Over Surgical Mesh Product

  • Kentucky AG Andy Beshear filed a complaint against Johnson & Johnson Services, Inc., Ethicon, Inc., and Ethicon US, LLC, (collectively “J&J”) alleging that the companies violated state consumer protection laws by deceptively marketing a surgical mesh product designed to treat pelvic floor conditions in women.
  • According to the complaint, J&J allegedly misrepresented the safety of the mesh and neglected to inform consumers and physicians that, among other things, the mesh caused women to face issues with urinary dysfunction, loss of sexual function, and chronic pain.
  • Earlier this year, California AG Kamala Harris and Washington AG Bob Ferguson also filed complaints against J&J over these allegations.



West Virginia Attorney General Settles with Three Major Retail Pharmacies Over Generic Drug Sales

  • West Virginia AG Patrick Morrisey reached three separate settlements with Walgreen Co., CVS Pharmacy, LLC, and Kroger Co. over alleged violations of the state’s Consumer Credit and Protection Act and the Pharmacy Act, the latter of which requires pharmacies to pass retail savings from generic prescription drug sales on to consumers.
  • According to the AG’s office, the three companies allegedly failed to accurately calculate and pass along retail savings from its sale of generic prescription drugs to consumers.
  • As we previously reported, AG Morrisey settled with Rite Aid Corp. in April 2016 over similar allegations.


State v. Federal

18 Attorneys General Support CFPB Proposed Rule on Arbitration

  • 18 AGs, led by Massachusetts AG Maura Healey, composed a letter to the Consumer Financial Protection Bureau (“CFPB”) supporting the agency’s proposed rule regarding pre-dispute arbitration agreements under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.
  • As we previously reported, the proposed regulations would prohibit the use of mandatory arbitration clauses that prevent class action lawsuits in certain contracts for financial products and services.
  • The AGs’ letter supports the proposed rule, in part, because it will restore the consumer’s right to participate in class action lawsuits, which they claim are more effective in addressing financial industry consumer protection violations.


12 Attorneys General Urge U.S. House Committee to End Inquiry into State Investigations of Oil Company

  • 12 AGs, led by Maryland AG Brian Frosh, sent a letter to Representative Lamar Smith, Chairman of the House Committee on Science, Space, and Technology, urging him to withdraw subpoenas issued to Massachusetts AG Maura Healey and New York AG Eric Schneiderman regarding their investigations into whether ExxonMobil Corporation misled investors and the public with respect to the risks of climate change.
  • In the letter, the AGs assert that the subpoenas exceed Congress’ constitutional authority, disrupt the comity between federal and state government, and that AGs do not require “vigorous oversight”, as Rep. Smith stated in a June 2016 letter to AG Healey.
  • As we previously reported, ExxonMobil filed a petition earlier in the year seeking to halt AG Healey’s investigation which resulted in 14 AGs filing an amicus brief in the U.S. District Court for the Northern District of Texas in support of AG Healey.  At the same time, 13 other AGs wrote a Dear Colleague letter to AGs investigating fossil fuel companies urging them to halt such efforts because it “undermines the trust invested in our offices and threatens free speech.”


8 Attorneys General Express Concern with EPA Regional Haze Proposed Rule

  • 8 AGs, led by Arkansas AG Leslie Rutledge, submitted comments to the U.S. Environmental Protection Agency (“EPA”) expressing concerns about the agency’s proposal to amend the Clean Air Act’s Regional Haze Rule, which describes the process states must undertake when submitting to the EPA state implementation plans and progress reports for reducing visibility-impairing emissions.
  • The EPA’s proposed revisions to the Regional Haze Rule would expand the role of the federal land manager in the planning process and expand the types of situations that the states must address in their plans, among other things.
  • In their letter, the AGs criticized the EPA for impeding state authority to create reasonable progress goals and long term goals toward natural visibility conditions, failing to consider the potential increased costs of the rule changes, and making vague the definition of visibility impairment.