Women Make Their Presence Known at Natural Products Expo West

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Conkle, Kremer & Engel attorneys Heather Laird and Desiree Ho attended the Natural Products Expo West in March 2018, where they encountered product trends emphasizing simple recognizable ingredient formulations, and business trends emphasizing strong women’s influences in ownership and management.  Demonstrating the growing consumer interest in natural and organic products, attendance at this year’s Expo was reported to be the largest ever, exceeding 85,000 visitors to more than 3,500 exhibitors.  CK&E attorneys visited clients’ exhibit booths and met with entrepreneurs in the beauty, food, and beverage industries to help them strengthen their brands, navigate regulatory and labeling issues, and grow their business.

Exhibitors showed strong cross-cultural influences, with many products and flavors from around the world, all emphasizing the trend toward fewer and more recognizable ingredients in simple formulations.  Businesses clearly demonstrated they are responding and catering to the adventurous interests and palates of health-conscious, worldly, and informed consumers.  Countless product lines were customized for consumers committed to paleo, vegan, and gluten-free diets.  Another popular trend is toward products and businesses that are dedicated to championing charitable causes, so consumers can use their purchases to support causes they are passionate about and can feel loyal to brands that are as committed as they are.

Mirroring recent cultural trends, women-owned and managed businesses were very notable throughout the Expo.  Many entrepreneurs proudly advertised their Women’s Business Enterprise National Council (WBENC) certifications.  The WBENC certification “validates that the business is 51 percent owned, controlled, operated, and managed by a woman or women.”

In the beauty arena, there were a refreshing number of brands actively encouraging women to maintain an open dialogue with the product manufacturer to address issues they regularly face.  The trend of businesses expending great effort to establish dialogue and long-term relationships with their consumers through social media and direct contacts has become clear.  These overlapping trends resulted in prominent presentation of many products “made for women, by women,” ranging from beautifully packaged feminine hygiene products to natural pre-natal and post-natal products promoted as safe for use by pregnant women and around infants.

CK&E attorneys provide full service to businesses in the beauty, food, and beverage industries.  They regularly attend important trade shows to help their clients stay abreast of trends, new regulations, and developments in the law and the marketplace affecting these industries.


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UK Bans Sale of Products with Plastic Microbeads

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Beginning on June 30, 2018, the United Kingdom’s ban on the sale of “rinse-off” cosmetic and personal care products containing plastic microbeads in their formulas will take effect as part of the Department for Environment, Food and Rural Affairs’ (“Defra”) efforts to reduce the harmful, pollutive impact that plastic microbeads have on the marine environment.  The sales ban follows the ban on the manufacture of such products in the UK that went into effect on January 9, 2018.  Defra described the prohibition as “one of the world’s toughest bans on these harmful pieces of plastic.”  Notably, the UK ban applies to both biodegradable and non-biodegradable plastic microbeads.

While the Institute for European Environmental Policy (IEEP) and organizations such as Beat the Microbead and Plastic Soup Foundation have pushed for an EU-wide ban on the sale of plastic microbeads, it does not appear that such a ban is being developed at the moment.  However, European countries are trending toward microbead bans: Sweden’s ban on the sale of rinse-off cosmetics with microbeads takes effect on July 1, 2018 (although sellers who obtain such products before that date may continue to sell them until January 1, 2019); Ireland plans to introduce a microbead ban by the end of 2018; and several other countries in the European Union are reportedly in the process of developing their own microbead bans.

Plastic Microbeads in Cosmetics

For decades, plastic microbeads have been used in facial cleansers, soaps and toothpastes for their exfoliating properties.  However, in response to growing concerns about the environmental impact of plastic microbeads in recent years, many companies have reformulated their products to use other non-plastic exfoliants, such as walnut shells, salt, seeds and jojoba beads, among others.

Plastic microbeads make their way from our sinks and showers, to the sewage systems, and into the marine environment.  One scientific study found that in the United States alone as many as eight trillion microbeads end up in our lakes, rivers and oceans every day.  The microbeads absorb toxins and are ingested by marine animals who transport them to other creatures up the food-chain.

UK Follows Example Set by US Ban

The “tough” UK ban follows in the footsteps of the Microbead-Free Waters Act of 2015 in the United States banning both non-biodegradable and biodegradable plastic microbeads, which was signed into law by President Obama on December 28, 2015.  Prior to the federal ban, however, eight of the nine states to pass legislation banning plastic microbeads in personal care products exempted biodegradable plastic beads from the ban.  California was the only state with a plastic microbead ban that included both biodegradable and non-biodegradable plastics within its scope, as studies showed that even the biodegradable microbeads disintegrate quite slowly and create a negative environmental impact.  For more history about the introduction of state-level microbead legislation, see CK&E’s earlier post regarding New York’s Microbead-Free Waters Act and the proposed laws in other states.

While the scopes of the UK and US bans are substantially similar, a violation of the UK ban could come with a much steeper monetary penalty.  While the fine for violating the US ban generally does not exceed $1,000 (assuming that there was no intent to defraud or mislead), a violation of the UK ban could cost the violator up to 10% of its annual revenue in England.

If you are a manufacturer, it is important that you stay up to date with the industry regulations in every territory where you manufacture or distribute your products.  CK&E has decades of experience helping clients adapt their businesses and products to comply with changing regulations all over the world, in a cost-effective and efficient manner.

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California’s Cleaning Product Right to Know Act Requires Ingredient Disclosure

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California became the first state in the nation to have a cleaning products disclosure law, after Governor Brown signed the Cleaning Product Right to Know Act of 2017 (S.B. 258 (Lara)) into law in late 2017.

The Cleaning Product Right to Know Act requires manufacturers of certain cleaning products sold in California to disclose on the product label and on the product’s Internet web site certain information related to known hazardous chemicals contained in the product.  Manufacturers will have until January 1, 2020 to comply with the online disclosure requirements, and until January 1, 2021 to comply with the product label disclosure requirements.  However, any intentionally added ingredient that is regulated by California’s Safe Drinking Water and Toxic Enforcement Act (commonly known as Proposition 65) will not have to be listed until January 1, 2023.

The new law applies to so-called “designated products”, which are defined as a finished product that is an air care product, automotive product, general cleaning product, or a polish or floor maintenance product used primarily for janitorial, domestic or institutional cleaning purposes.  It does not apply to foods, drugs and cosmetics, trial samples, or industrial products specifically manufactured for certain industrial manufacturing processes.

The product label will be required to disclose each intentionally added ingredient contained in the product that is included on any of 22 specified designated chemical lists – including chemicals listed pursuant to Proposition 65.  Alternatively, manufacturers may list all intentionally added ingredients contained in the product unless it is confidential business information.  The Act also requires the disclosure of fragrance allergens greater than 0.01 percent (100 ppm).  Additional requirements include the manufacturer’s toll-free telephone number and Internet web site address on the product label.

As for the online disclosure requirements, manufacturers must list all intentionally added ingredients and state their functional purpose.  All nonfunctional constituents present at above 0.01 percent (100 ppm) must also be listed.  The website must include electronic links for designated lists and a link to the hazard communication safety data sheet for the product.  In addition, specific requirements apply for the disclosure of fragrance allergens online.

The Act also adds a section to the California Labor Code imposing an obligation on employers who are required to provide employees with Safety Data Sheets (SDS).  Those employers must similarly make the printable information from the online disclosure available in the workplace.

Although it is a state law, the effect of the Cleaning Product Right to Know Act is certain to be felt by manufacturers across the country who sell their products into California, as is true of many of California’s other regulatory schemes, including Proposition 65, and will most likely result in a nationwide relabeling of covered products.

Given the Act’s numerous and in some cases highly technical requirements, manufacturers of cleaning products would be well advised to determine whether any of their products are subject to the Act, and take steps now to ensure compliance by 2020.  Conkle, Kremer & Engel attorneys stand ready to help manufacturers handle all that is coming their way.

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Big Beer, Craft Beer, and Trademark Infringement: Harm to Premium Brands

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As the craft beer market continues to expand in popularity and threaten the market share of older “macrobrewery” giants like Molson Coors and Anheuser Busch, courts have seen increased legal disputes in the beer industry as brands fight for both their independence and the attention of consumers.  Most recently, Molson Coors has been sued in federal court in San Diego by Stone Brewing Co., one of the oldest and largest independent craft brewers in the United States.  In its complaint, Stone Brewing claims that Coors is infringing the “STONE” trademark by rebranding Coors’ sub-premium, low cost “Keystone” brand as “KeySTONE,” with a particular emphasis on the single word “STONE” in packaging and marketing materials.  Because of this, Stone Brewing alleges, Coors is sowing consumer confusion between the two brands.

Keystone Rebranding Comparison from Stone Complaint

Unless there is a swift settlement, one can assume that Stone Brewing will make good on the threat in its complaint that it will move for a preliminary injunction in order to stop the sale of Coors’ “KeySTONE” branded products during the pendency of the lawsuit.  A motion for a preliminary injunction is often a critical juncture in such trademark infringement lawsuits, and Stone Brewing will need to show that it will be “irreparably harmed” if the injunction is not granted.  This showing has in recent years become more difficult, as courts no longer presume irreparable harm when the plaintiff shows that consumers are likely to be confused by trademark infringement, but rather require an additional showing of likely irreparable harm.  “Irreparable harm” (also known as “irreparable injury”) generally means injuries that cannot be readily compensated by money damages, and since money damages are usually available for trademark infringement this standard presents special hurdles for infringement plaintiffs that can be difficult to overcome early in a case.

To show irreparable harm, one argument Stone Brewing will likely make is that its “premium brand” is being tarnished by confusion with Coors’ “value brand.”  This argument is presaged throughout Stone Brewing’s complaint (referring to Keystone’s beers as “watered down” and “fizzy yellow offerings,” as opposed to Stone Brewing’s “bold” and “artisanal” products).  The argument, which has been judicially adopted in relatively few cases, is essentially that the premium or niche brand is irreparably harmed by the association with the value, mass-market brand, which usually is of lesser quality.

Conkle, Kremer & Engel, which has experience in both trademark litigation and issues specific to beer production, distribution, and marketing, has succeeded in making this premium-vs.-value argument in federal courts in California.  For example, in Moroccanoil, Inc. v. Zotos International, Inc. (230 F. Supp. 3d 1161 (USDC C.D. Cal. 2017)), a 2017 trademark infringement case with similarities to the dispute between Coors and Stone Brewing, CK&E represented the manufacturer of Moroccanoil Treatment, a luxury oil-infused hair care product sold in distinctive packaging.  The defendant Zotos, part of a large personal care products conglomerate, had created a low-cost “value” hair oil product called “Majestic Oil” that, in addition to its similar name, used packaging that was a close likeness of Moroccanoil’s trade dress.

CK&E, in its successful motion for preliminary injunction, argued that sales of low-cost “value” Majestic Oil products would erode Moroccanoil’s carefully-built premium image.  The presentation included evidence establishing that once a product is no longer perceived by consumers as “premium,” it is difficult or even impossible for the seller to regain that perception.  The court agreed with CK&E and Moroccanoil, finding a likelihood of irreparable harm and granting a preliminary injunction against further sale of the Majestic Oil products.

Preliminary injunctions can be dramatic turning points in infringement cases.  In Moroccanoil’s case, the court’s preliminary injunction prevented Zotos from any further sales, advertisement or distribution of its infringing products, and required Zotos to recall all of its infringing products already in the market.  As could be predicted, the case settled swiftly thereafter and Zotos made permanent substantial changes to its product name and packaging to avoid infringing Moroccanoil’s intellectual property rights.

Click here to learn more about CK&E’s Moroccanoil v. Zotos matter or contact CK&E attorneys who work on beer industry matters, such as the brand protection that can make or break participants in the crowded craft beer market, including John Conkle, Evan Pitchford and Zachary Page.

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The Conkle Firm Addresses The Future of Fashion

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On January 30, 2018, the USC Gould Law School presented “The Future of Fashion,” a panel discussion co-hosted by the IP & Technology Law and Art Law Societies at USC.  Conkle, Kremer & Engel attorney Aleen Tomassian was one of the expert panelists invited to discuss the current state of intellectual property law as it affects the fashion industry, and to discuss how recent court decisions affect the future of the industry.

USC Panel – Aleen Tomassian (Center)

A major point of discussion involved the impact of the Supreme Court’s recent Varsity Brands v. Star Athletica decision, a copyright case that concerned design features on cheerleading uniforms.  Historically, articles of clothing have not generally afforded copyright protection because they are considered “useful articles.”  But the Supreme Court held that the design features of the uniforms in issue were protectable because they were works of art which could be imagined separately from the useful article into which they were incorporated.    Many have suggested that the holding in Star Athletica signals that broad copyright protection would be available for articles of clothing.  But the USC panel discussion made  clear that Star Athletica affirmed that copyright protection is available for design elements as distinct from “useful articles,” and the recognized protection is not available to clothing in general.

The panel addressed the unique intellectual property issues that the fashion industry faces.  There was a broad discussion about the economic and moral impact of “copycat” designs on society and the effects of “knockoffs” on innovation.  Since fashion designs are not specifically protected under U.S. law, the conversation highlighted how attorneys skilled in fashion law use a combination of available forms of protection, including copyright, trademark, trade dress and design and utility patents.  A recent example is the pending case of Puma SE v. Forever 21, Inc., USDC Central District of California Case No. 2:17-cv-02523, in which Puma asserts that it has distinctive shoe designs in a line called Fenty Shoes that is promoted by singer Rhianna.  Puma contends that Forever 21 engaged in deliberate copying of some of its Fenty Shoes designs, notably the popular “Creeper”, “Fur Slide” and “Bow Slide” models.  To protect its designs, Puma alleged infringement of design patents, trade dress and false designation of origin under the Lanham Act, and copyright.  Puma’s copyright claims attempt to leverage the Star Athletica decision by contending that certain elements of the Fenty Shoes “can be perceived as a two- or three-dimensional works of art separate from the Fenty Shoes” and “would qualify as protectable pictorial, graphic, or sculptural works – either on their own or fixed in some other tangible medium of expression.”   Under the Star Athletica standard, to allow this type of copyright infringement claim, the court will have to determine that “the separately identified feature has the capacity to exist apart from the utilitarian aspects” of the shoe.  “If the feature is not capable of existing as a pictorial, graphic, or sculptural work once separated from the useful article” – the shoe – then it is a utilitarian feature and not subject to copyright protection.

The attorneys at Conkle, Kremer & Engel have years of experience navigating the complex legal and intellectual property issues faced by clients in the fashion industry.  Our attorneys help clients protect their brands to ensure their continued success in this demanding and fast-paced industry.

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The Conkle Firm’s “Spa Weekend” at the International Salon and Spa Expo

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On January 27th and 28th, 2018, attorneys from Conkle, Kremer & Engel attended the International Salon and Spa Expo (ISSE), which is hosted annually by the Professional Beauty Association (PBA).  At ISSE, CK&E attorneys met with clients and other beauty professionals to help them expand their business frontiers and address concerns about intellectual property, regulatory compliance, and  contractual relations.  CK&E attorneys also relished the opportunity to observe first-hand the latest trends and exciting new spa and cosmetic products.

Sheet masks and other Korean beauty products continued to be as popular as they have been in the past few years. But more palpable this year at ISSE was the recent movement towards “inclusive beauty,” emphasizing a range of culturally enlightened products that appeal to a wider range of consumers of different ethnicities, ages, genders and abilities.  Exhibitors displayed a wide range of products intended for people with all skin and hair types and colors.  Many brands showcased hypoallergenic and natural products with few ingredients, suitable for use on consumers with allergies or medical conditions.  There were also more personal care products geared towards men than there have been in previous years.

ISSE offered a wide array of complimentary educational programs related to the beauty industry, including classes regarding the importance of social media presence for artists and brands.  CK&E attorneys remain ready to provide their clients with legal assistance in the ever-changing world of social media by keeping up to date on developments in social media.  At ISSE, attorneys Evan Pitchford and Desiree Ho attended “Getting It Right On Instagram,” a seminar hosted by long-time beauty industry executive and social media guru Gordon Miller, CEO of Hairbrained, an online community for craft hairdressers and colorists to connect and share their work.

For next year, PBA has already announced that it will launch STYL on January 26-28, 2019, a new event that PBA promises is not an expo or convention, but rather “STYL is an experience where the leaders, learners, students, owners and the beauty industry come together from across the country.”

CK&E is proud to be a member of the PBA and other professional beauty organizations, and is delighted to be in its third decade of helping domestic and international businesses of all sizes grow and evolve to meet their goals in an efficient and cost-effective manner.

Desiree Ho, Glen Pacek, Karl Sweis and Evan Pitchford at Sweis Moroccanoil booth

CK&E attorneys Mark Kremer and Amanda Washton sample industry trends at ISSE

Gordon Miller (far right) of Hairbrained moderates Instagram panel

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Prop 65 Trouble is Brewing for Coffee Sellers

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A brewing case spells trouble for coffee shops in California.  Coffee sellers including Starbucks, Target and Whole Foods are in the midst of an ongoing lawsuit with the Council for Education and Research on Toxics (CERT) over the presence of acrylamide in coffee.

Acrylamide is on the Proposition 65 list of chemicals which California has declared are known to the state to cause cancer or reproductive toxicity.  While acrylamide is not found in raw foods, the chemical can form in starchy and carbohydrate rich foods, such as potatoes, when cooked at high temperatures.  Acrylamide is a natural byproduct of the coffee roasting process, and is formed when the sugars and amino acids of the coffee bean are heated.

CERT (associated with Raphael Metzger of the Metzger Law Group) is a well-known plaintiff in Prop 65 cases of this sort, and this is not the first time CERT has been involved in litigation over acrylamide in food and drink products.  Acrylamide was added to the Proposition 65 list in 1990 based on studies showing it as a potential carcinogen in industrial exposures.  In April 2002, a subsequent study by the Swedish National Food Administration revealed high levels of the chemical in various high carbohydrate foods which are cooked at high temperatures, including french fries, potato chips, crackers, and bread.  CERT filed suit that same year against McDonalds and Burger King over the presence of acrylamide in french fries.  The fast-food retailers eventually settled and agreed to post Prop 65 warnings.

Office of Environmental Health Hazard Assessment (OEHHA) has set the No Significant Risk Level (NSRL) for acrylamide at 0.2 µg/day.  NSRL is the level of exposure at which chemicals on the Prop 65 list are deemed to pose no significant risk, and for which a Prop 65 warning is not required.  CERT v. Starbuck Corp., et al was originally filed in 2010 against 90 coffee sellers.  The suit claimed that defendants’ coffee contained 4-100x more acrylamide than the NSRL.  During the first phase of a two-phase bench trial, defendants argued that the level of acrylamide in their coffee products posed no significant risk because a multitude of studies show that coffee consumption does not increase the risk of cancer.  The court rejected this argument because the studies assessed the effects of coffee generally, as opposed to the presence of acrylamide in the coffee.  Defendants’ argument that requiring them to post a Prop 65 warning amounts to unconstitutional forced speech was also rejected.

The second phase of the trial began in September 2017.  During this bench trial, defendants argued that coffee is exempt from the NSRL standard, and rather an “alternative risk level” applies.  Proposition 65 allows for a higher “alternative risk level” to apply to chemicals produced in the process of cooking foods to make them palatable or safe.  Since acrylamide in coffee is naturally produced during the roasting process, Defendants argue that they are subject to this exemption.

A ruling is expected soon, and if CERT succeeds, California coffee sellers will be required to post Proposition 65 warnings.  Several coffee retailers who were initially named in the lawsuit have already posted warnings in their stores.  7-Eleven, who opted to settle the suit, agreed to post warnings and pay a $900,000 fee.  While Starbucks continues to challenge the suit, it has already posted warnings at its stores, presumably to limit damages it may have to pay if CERT succeeds at trial.

Conkle, Kremer & Engel attorneys will continue to monitor and report on the outcome of this case.  CK&E has many years of experience advising clients about Proposition 65 and other regulatory compliance issues they face.  Our attorneys help clients stay out of legal hot water by working with them to ensure their products continue to meet all legal requirements, and helping them plan for foreseeable changes in the law.


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The Conkle Firm Trending At Indie Beauty Expo

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Conkle, Kremer & Engel attorneys Amanda Washton and Desiree Ho attended the Indie Beauty Expo in Los Angeles to take note of emerging trends in the beauty industry.  More than 100 brands exhibited their products at  this event, many of which recognized a key trend in the beauty market – consumers are becoming increasingly attentive to what is in their products and where their money is going.  Countless brands touted business practices such as sharing profits with charitable causes, as well as product features like “vegan,” “natural,” and “organic.”  The simpler the ingredient list, the better.  The product packaging and displays reflected this gravitation towards simplicity – minimalist typography, clean lines in the artwork, and monochromatic color schemes.

As more companies hop onboard the “organic” and “natural” train, beauty brands should be careful about their advertising and labeling to avoid drawing adverse attention of regulators and others policing the market.  Conkle, Kremer & Engel has published multiple blog posts throughout the years concerning “natural” and “organic” product claims.  Selling “natural” products in California can be particularly hazardous without the right guidance – “natural” ingredients may be subject to Proposition 65, as CK&E has explained in the past.  Manufacturers would do well to remember that the California Supreme Court has warned, particularly in claims of organic contents, “labels matter.”

With decades of beauty industry experience helping companies grow and protect their businesses, CK&E attorneys routinely guide clients through the process of complying with Proposition 65 and other complex regulatory schemes.

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How Does Marijuana Legalization Affect Employer Workplace Policies?

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Do I have to change my drug-free workplace policy now that marijuana is legal?

On January 1, 2018, recreational marijuana became legal in California.  That raises a few questions, to put it mildly.  For California employers and employees, one of the first questions is, must employers change their drug-free workplace policies now that cannabis use is legal?

Generally speaking, the answer is no.  A California employer can still keep its drug-free workplace policy (as long as it was legally compliant before January 1) that prohibits the use of alcohol and drugs, including cannabis, in the workplace.  There is even a California Health and Safety Code statute protecting employers: The legalization of cannabis use “does not amend, repeal, affect, restrict, or preempt…[t]he rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of cannabis in the workplace, or affect the ability of employers to have policies prohibiting the use of cannabis by employees and prospective employees, or prevent employers from complying with state or federal law.”

Does this mean I can terminate an employee who tests positive for cannabis?

Yes, if you have a zero-tolerance policy that provides for dismissal of employees who test positive for drugs.  An employer can keep its drug-free workplace policy and test employees for alcohol and drugs, including cannabis, in compliance with the law.  That means that an employer can refuse to hire an employee who tests positive for cannabis.  It also means that an employer can ask an employee to take a drug test when the employer reasonably suspects the employee is under the influence of any substances prohibited under the employer’s policy.  An employer can terminate an employee who refuses to take the test, or who tests positive for those prohibited substances, including cannabis.

What if the employee is using marijuana to treat a disability?

With all the medical leave and disability discrimination laws protecting employees with certain medical conditions, employers are also understandably nervous about terminating an employee who relies on medical marijuana.  For now, employers can rest easy.  Because federal law still prohibits cannabis use, both state and federal law refuse to protect the employee’s illegal drug use, even if the employee is using medical marijuana, with a prescription, to treat a medical condition.

Of course, cannabis law is quickly evolving.  From legalizing marijuana at the state level in parts of the country, to rescinding “hands-off policies” at the federal level that were intended to leave states to decide on the cannabis issue on their own, cannabis laws are subject to change.  Employers should keep a close eye on the interaction between federal and state laws on cannabis use, and be prepared to modify their drug policies as needed.

Conkle, Kremer & Engel attorneys are experienced with counseling employers who face a constantly changing landscape of laws, ordinances, and regulations, and resolving employment issues as they arise.

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What’s in Your Packaging? Prop 65 Applies to PVDC

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Can your product wrap subject you to Proposition 65 warning requirements?  You bet.  California has added vinylidene chloride to its long list of chemicals to which Proposition 65 applies, effective on December 29, 2017.  The Office of Environmental Health Hazard Assessment (OEHHA) has not established a safe harbor level for vinylidene chloride, although that remains under consideration.

Vinylidene chloride is used in the production of polyvinylidene chloride (PVDC) copolymers. PVDC was developed by Dow Chemical Company, and was at one point used in the production of the popular food wrap product, Saran Wrap. PVDC has characteristics ideal for food packaging because it has low permeabiltiy to water vapor and gasses. While use of PVDC in Saran Wrap was later phased out due to cost and environmental concerns, other copolymers of vinylidene chloride are still commonly used in food packaging, including box overwrap, vertical form fill seal, horizontal form fill seal, and pre-made bags. Vinylidene chloride is also extensively used in a variety of other packing materials, as flame retardant coating for fiber and carpet backing and in piping, coating for steel pipes, and adhesive applications. Other common consumer products that may contain vinylidene chloride include cleaning cloths, filters, screens, tape, shower curtains, garden furniture, artificial turf, doll hair, stuffed animals, fabrics, fishnet, and shoe insoles.

Manufacturers, distributors and retailers are required to provide Prop 65 warnings to workers and consumers who are exposed to vinylidene chloride.  Companies have one year from the listing date to comply with Prop 65.  Companies that have not reformulated their products to remove vinylidene chloride, or that fail to provide a Proposition 65 warning on products containing it, by December 29, 2018 are at risk of receiving a “Notice of Violation” from private enforcers seeking to gain thousands of dollars in penalties and attorneys’ fees.  A Notice of Violation typically precedes a lawsuit for violation of Proposition 65.

The listing of vinylidene chloride as a chemical known to cause cancer by OEHHA is a reminder that not only product contents, but also packaging materials, are included within Prop 65 compliance requirements.  As we previously reported, since December 2014, products sold in California that contain diisononyl phthalate (DINP) have required a Proposition 65 warning.  DINP is found is many soft plastic and vinyl products, and purported violations have been found in seemingly innocuous packaging, such as gift bags for cosmetic products.

Conkle, Kremer & Engel has many years of experience advising clients with respect to Proposition 65 and other regulatory compliance issues. CK&E attorneys help clients stay out of legal crosshairs by working with them to ensure their products continue to meet all legal requirements, and helping them plan for foreseeable changes in the law.

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