The Conkle Firm Attends Cosmoprof North America’s Exhibition in Las Vegas

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On July 9, 2017, the attorneys of Conkle, Kremer & Engel attended Cosmoprof North America’s annual exhibition in Las Vegas, both to assist clients and to observe first-hand the latest trends in the beauty and personal care industry.  Tens of thousands of professionals attended the three-day exhibition, which featured over 1,150 exhibitors from 38 countries. CK&E attorneys attend to connect with clients and others in the cosmetics, personal care, packaging, labeling and professional beauty markets, to help clients secure distribution agreements, and to learn about the newest industry innovations.

This year, brands dedicated to “green” products were showcased as consumers continue to be interested in eco-friendly beauty and technology.  Skincare brands also made a strong showing as consumers have been increasingly interested in anti-aging and other preventative products and technologies.  Facial mask and dedicated ethnic products made a particularly strong showing this year.  Globalization of the beauty market is readily apparent – Euromonitor International has an excellent detailed analysis of recent international growth in the beauty and personal care industry on a global scale:  http://blog.euromonitor.com/2017/05/reimagining-growth-in-the-global-beauty-industry.html

CK&E’s attorneys pride themselves on effectively and efficiently assisting clients of all sizes with brand protection and growth and regulatory compliance, both domestically and internationally.  CK&E is an active member of the Professional Beauty Association, and other important industry trade organizations.

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The Conkle Firm Advocates for Beauty Industry at State Capitol

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For many years, Conkle, Kremer & Engel has advocated for members of the beauty, health and cosmetics industry in the legislature, as well as in business negotiations, before state and federal regulators, and in court.   This year, CK&E attorney John Conkle was a member of the delegation of the Personal Care Products Council (PCPC) that visited the California state capitol in Sacramento in April 2017.  The PCPC advocates for the personal care products, beauty and cosmetics industry at federal, state and local levels on legislative priorities and regulatory issues. For the PCPC’s California Lobby Day in Sacramento, John participated in group discussions with state executives and regulatory personnel relating to the most current topics affecting the personal care products industry. In the afternoon session, John joined teams of PCPC staff and member representatives who met with legislative personnel to discuss the economic impact of the industry in California and pending legislation of interest to the industry.

California is an extremely important part of the beauty, health and cosmetics business, and it is vital for members of the state legislature to understand and appreciate the economic impact that the industry has for California, and to take steps to protect that interest.  CK&E is proud to be in a position to help the industry make its voice heard by California’s lawmakers and regulators.

Conkle, Kremer & Engel is a proud and active member of the Personal Care Products Council.  CK&E attorneys are glad to lend their legal expertise to the PCPC and its member companies by participating in PCPC conferences and industry advocacy efforts.

John Conkle with State Senator Ed Hernandez

John Conkle with Assemblyman Heath Flora

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What are “Natural” Products Anyway?

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Personal care products that claim to be “natural”, “all natural” or “100% natural” continue to draw scrutiny from consumer advocates and regulatory agencies such as the FTC. Perhaps surprisingly, there still is no clear definition of the word “natural” for personal care products.  It’s no small concern, as consumers and manufacturers can have different expectations of what “natural” means, which can lead to confusion and accusations of false or misleading advertising.

Despite the uncertainty, “natural” product claims matter to consumers. According to a 2015 Nielsen report, 53% of consumers surveyed said that an “all-natural” description was moderately or very important to their purchasing decision. The worldwide natural products industry is estimated at $33 billion – and it’s growing.  “Naturally,” companies want to capitalize on this trend.

But what exactly is a “natural” product? Is it plant-derived? Is it made from ingredients found in nature?  Is it free of preservatives? Is it made without synthetic ingredients?  There are no FDA regulations regarding use of the word natural. However, the FDA has issued non-binding guidance that states it will not contest food products labeled as “natural” if the product does not contain added color, artificial flavors or synthetic substances. Though this provides a limited understanding of the term “natural”, the guidance is as to food, pertains only to FDA enforcement and is not a legal requirement.

In a recent complaint filed with FTC, California Naturel’s sunscreen was alleged to be not “all natural”, as it claimed, because 8% of it was Dimethicone, a synthetic ingredient. Following the FTC complaint, California Naturel put a disclaimer on its website, which was later ruled as ineffective in a 2016 FTC decision.

Starting in 2015, the Honest Company also found itself in court for false advertising in regard to their “natural” products.  Though the Honest Company markets its products as “natural”, the products contain a number of synthetic ingredients. Consumers argued that their understanding of “natural” was a product free of synthetic or artificial ingredients, and the court held that the Honest Company’s  “natural” claims for its products is misleading.

The current trend is that the surest way to avoid complaints when products are advertised as “natural” or “100% natural” is to make certain they are free of synthetic ingredients.  Next to that, disclosure of what you mean by “natural” as used on your product can be an important measure to avoid consumer confusion.

Conkle, Kremer & Engel attorneys help their clients navigate these tricky currents by staying up to date on developments affecting the personal care products industry.

 

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CK&E Sponsors 2016 PCPC Emerging Issues Conference

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Conkle, Kremer & Engel is proud to once again sponsor the Personal Care Products Council Emerging Issues Conference on November 10, 2016 at the Ritz Carlton Hotel in Marina Del Rey, California.

John Conkle will attend the conference on behalf of CK&E to address current legal trends and developments in the cosmetic and personal care products industry.  This annual event by the PCPC – the leading national trade association for the cosmetic and personal care products industry – is a must-attend for beauty companies across the country, with its unique focus on the many challenges that are on the horizon for the beauty industry.  The presentation this year will include a particularly timely focus on international trade issues affecting the cosmetics industry, including appearances by industry representatives from Canada and Mexico.

This year’s conference is particularly topical panel discussion entitled “2016 Elections: What happened and what it means for you!”   The panel included Dan Schnur, a leading political strategist and Director of Jesse Unruh Institute of Politics at University of Southern California, which runs the USC-Los Angeles Times Daybreak Poll that was one of the few polls to correctly predict Donald Trump’s election.  In comments during their PCPC presentation, the panel noted that if President Trump follows through with pledges such as environmental regulation rollbacks, it is likely that California will respond by enacting its own additional rules and regulations.

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Michael Thompson, Senior VP, PCPC Government Affairs; Dan Schnur Director, Jesse Unruh Institute of Politics, USC; Darius Anderson, CEO, Platinum Advisors

CK&E is pleased to once again participate in this annual event and to offer its experience and insight into legal issues affecting the industry to the PCPC and its members.

2016-emerging-issues-conference-cke-sponsor

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California ARB’s Third Product Survey Starts July 1, 2016

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The California Air Resources Board’s ambitious, three-year long data collection effort is rounding third and heading for home.  The mandatory reporting period for the third and final year of the Consumer and Commercial Products Survey (now called “Data Reporting for the Consumer Products Program”) will begin July 1, 2016 and end November 1, 2016.

Businesses will once again be required to report detailed product ingredient information and annual sales for products sold in California during 2015, as they were required to do for chemically formulated consumer and commercial products sold or supplied for use in California during the 2013 and 2014 calendar years.  ARB requires the ingredient and sales information to be reported through its online Consumer Products Reporting Tool.  Veterans of the two prior Surveys may notice that ARB no longer refers to the mandatory reports as “Surveys,” apparently because that name suggested to some that the reports were somehow optional.  They are not optional.  Non-compliance will draw letters from ARB and persistent non-compliance will result in referral to ARB’s Enforcement Division.

Reports must be filed by each “responsible party” listed on the label of a consumer or commercial product that was sold or supplied for use in California during the calendar year, if the product falls into one of the many categories listed for 2015.  The general categories of consumer products that are subject to reporting are personal care products, adhesives, sealants and related products, household and institutional products, pesticide products, solvent and thinning-related products, vehicle and marine vessel aftermarket products, and aerosol coating products.  But for the 2015 Report, ARB has exempted 232 categories of consumer products due to its assessment that the products contain low or no volatile organic compound (VOC) emissions – less than 0.05 tons per day of emissions.  A number of beauty products, including facial cleansers and soaps, nail glues and gel nail polishes, are now exempt from reporting for 2015, even though they were required to be reported for 2013 and 2014 Surveys.  ARB’s full list of exempt consumer products is available here.

Conkle, Kremer & Engel attorneys assist clients with achieving compliance with California’s many regulatory requirements, including the Consumer and Commercial Products Survey, so that clients can focus on expanding their businesses in valuable markets.

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The Conkle Firm Advises BIMA Participants on IP and Regulatory Issues

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Once again, Conkle, Kremer & Engel attorneys Mark Kremer and Kim Sim have been honored to participate in and contribute to the revolutionary Beauty Industry Market Access (BIMA) program, led by beauty industry guru Patty Schmucker of American Made Beauty.  BIMA is a multi-day intensive domestic and international trade and business education program taught by leading health and beauty industry experts. BIMA participants focus on key principles essential to expand their personal care products businesses both in the U.S. and overseas.

Mark contributes to the BIMA educational program by teaching modules on domestic and foreign intellectual property protection and international distribution agreements.   Participants are particularly advised about cost-effective methods of protecting their intellectual property internationally, such as international trademark registrations through the Madrid System, which can offer a centralized application process for trademark registration in over 90 countries based on a brand owner’s domestic application or registration.  Kim adds her expertise in domestic regulatory compliance, including Prop 65, California Organic Products Act (COPA), Safe Cosmetics Act, California Air Resources Board (CARB) regulations and survey requirements, and federal and state Made in the USA regulations.

BIMA is sponsored by Universal Companies, which has been in the beauty industry for over 18 years and is an important distributor of more than 300 brands in the spa, salon, esthetics and massage market, as well as their own proprietary brands.

In partnership with the California Trade Alliance (CTA), access to international trade shows are available to companies that participate in the BIMA programs. BIMA participants can exhibit in the popular California Pavilion regularly sponsored by CTA at Cosmoprof Bologna and Cosmoprof Hong Kong, among the world’s largest and most important beauty industry trade shows.

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PCPC’s California Lobby Day was a Great Success

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On April 12, 2016, Conkle, Kremer & Engel attorney John Conkle flew to Sacramento to be part of Personal Care Products Council’s delegation for California Lobby Day. The Personal Care Products Council (PCPC) advocates for the personal care products, beauty and cosmetics industry at federal, state and local levels on legislative priorities and regulatory issues.

Conferences held in the Governor’s Council Room featured presentations by Nancy McFadden (Executive Secretary to Governor Edmund G. Brown), Graciela Castillo-Krings (Deputy Legislative Secretary to Governor Edmund G. Brown, Jr.), Dr. Meredith Williams (Deputy Director of Safer Products and Workplaces Program Director, Department of Toxics & Substance Control), and Elise Rothschild (Deputy Director of the Hazardous Waste Management Program, Department of Toxics & Substance Control).  John joined teams of PCPC staff and member companies who met with legislative offices to discuss the economic impact of the industry and legislation pending before the California legislature. The day’s events were capped with a reception at which PCPC staff and members were joined by California State Legislators.

Conkle, Kremer & Engel is a proud and active member of the Personal Care Products Council.  CK&E attorneys are glad to lend their legal expertise to the PCPC and its member companies by participating in PCPC conferences and industry advocacy efforts..

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The Conkle Firm Joins PCPC California Lobby Day 2016

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Conkle, Kremer & Engel attorney John Conkle is proud to have again been invited to join the Personal Care Products Council’s delegation for California Lobby Day, an annual PCPC event held at the Capitol in Sacramento, California.  The Personal Care Products Council (PCPC) represents the personal care products, beauty and cosmetics industry at the federal, state and local level on issues of interest to the industry.

California Lobby Day represents a unique opportunity for industry leaders to meet with legislators including Leadership, key Committee Chairs and members of the Legislative Women’s Caucus, state officials, and their staff members and to engage in open discussions about legislative and regulatory issues affecting the personal care products industry.  The day is expected to include briefings in the Governor’s Office by the executive department personnel and meetings with staff in the offices of members of the State Legislature, as well as a reception for members of the California Legislature, personnel from the Office of Governor Brown, and PCPC members and staff.  Among those with whom John is expecting to meet are Nancy McFadden (Executive Secretary to Governor Brown); Carol Monahan-Cummings (Office of Environmental Health Hazard Assessment); Meredith Williams (Deputy Director of Safer Consumer Products and Workplaces Program, Department of Toxic Substances Control); and Panorea Advis (Director of the Governor’s Office of Business and Economic Development).

Conkle, Kremer & Engel is proud to be an active member of the Personal Care Products Council.  Over the years, CK&E has provided legal expertise to the PCPC and its member companies by presenting at conferences organized by the PCPC on legal and regulatory matters, as well as representing many PCPC member companies.  CK&E has also been a frequent sponsor of conferences organized by the PCPC and has participated in numerous events hosted by the PCPC.

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Labels Matter: Consumer Class Actions are Available for Organic Labeling Violations

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The California Supreme Court has affirmed that “labels matter” to both buyers and sellers of consumer products. “They serve as markers for a host of tangible and intangible qualities consumers may come to associate with a particular source or method of production.” California protects consumers from mislabeling through a number of laws, including possible class action lawsuits under the Consumers Legal Remedies Act (Civil Code §§ 1750 et seq.), unfair competition laws (Bus. & Prof. Code §§ 17200 et seq.) and false advertising laws (Bus. & Prof. Code §§ 17500 et seq.)

Aside from California’s general false labeling laws, there are specific laws and regulations regarding organic product labeling. The California Organic Products Act (COPA), generally requires that multi-ingredient cosmetics labeled or sold as organic contain at least 70% organically produced ingredients. But COPA is designed to work in concert with Federal regulations that direct baseline standards for production, labeling and sale of organic products. The California Supreme Court recently addressed whether the Federal regulations of organic products in some manner preempt or supersede California’s consumer protection laws, so that only the very limited Federal remedies can be pursued when there are alleged violations of organic labeling laws.

In Quesada v. Herb Thyme Farms, Inc., the California Supreme Court determined that California’s general laws prohibiting labeling misrepresentation do not conflict with the Federal laws concerning organic production, labeling and sale, but rather complement those Federal laws by allowing additional remedies to be pursued when those laws are broken by fraudulent organic product labeling. The Supreme Court observed that “permitting state consumer fraud actions would advance, not impair” the goals of providing “a level playing field” to manufacturers of organic products and “enhance consumer confidence in meaningful labels and reduce the distribution network’s reluctance to carry organic products.” From this perspective, where products are fraudulently mislabeled as organic, “the prosecution of such fraud, whether by public prosecutors where resources and state laws permit, or through civil suits by individuals or groups of consumers, can only serve to deter mislabeling and enhance consumer confidence.”

The result for manufacturers, distributors and resellers is that organic product labeling can create concerns at multiple levels, including federal and state regulatory liability, and class actions under strong state consumer protection laws. All those involved in the chain of manufacturing and distribution of products labeled as organic should consult with experienced counsel to protect themselves from potential adverse outcomes that can come from several directions. Conkle, Kremer & Engel attorneys are well versed in helping their clients proactively avoid and resolve such problems.

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CK&E to Present on Emerging Legal Issues at PCPC Emerging Issues Conference

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Conkle, Kremer & Engel attorneys John Conkle and Kim Sim will once address current legal trends and developments in the cosmetic and personal care products industry at the Personal Care Products Council (PCPC)’s Emerging Issues Conference on November 18, 2015 at the Ritz Carlton Hotel in Marina Del Rey, California.

John and Kim will present on “Emerging Legal Issues in the Cosmetic and Personal Care Products Industry.”  The topics to be discussed include recent developments involving enforcement of prohibitions on container slack fill, trends in lawsuits and agency action concerning advertising, an update on the California Air Resources Board’s ongoing Consumer and Commercial Products Survey, as well as a discussion about protecting companies from counterfeiting and cybersquatting in the digital age.

CK&E’s presentation from last year’s Emerging Issues Conference can be found here.

The annual event by the PCPC – the leading national trade association for the cosmetic and personal care products industry – is a must-attend for beauty companies across the country, with its unique focus on the many challenges that are on the horizon for the beauty industry.

This year’s agenda will also include updates from the PCPC on key issues for the industry and from the California Department of Toxic Substances Control on the California Safer Consumer Products and Workplaces regulations, as well as presentations on emerging issues in the Americas, safety standards for cosmetics, current and future challenges for Proposition 65.  In addition, Deputy Attorney General Robert Sumner is slated to speak at the conference.

CK&E is pleased to once again participate in this annual event and to offer its experience and insight into legal issues affecting the industry to the PCPC and its members.

 

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