Are You Ready for the New California Employment Privacy Regulations?

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You may recall that the California Privacy Rights Act (CPRA) amendments (Cal. Civ. Code § 1798.100 et seq.) went into effect January 1, 2023, but enforcement was delayed until March 29, 2024. Employers with the requisite contacts with California consumers (which is defined in an extremely broad manner) will be required to provide employees with extensive privacy notices, respond to requests to exercise new data rights, limit uses and disclosures of HR data, and obtain contractual commitments from third-party recipients of personal information.

The CPRA amendments apply to any business with worldwide gross annual revenue of $25 million or more that collects personal information from any California consumer, which includes a service provider, an employee, a job applicant or an investor, for example.  All entities that share common branding will be subject to the CPRA requirements if even one of those entities meet the requisite standards.

Generally, when the employer is subject to CPRA, its employees (and service providers, job applicants, investors, etc.) have six data rights:
1. The Right to Delete
2. The Right to Correct
3. The Right to Know
4. The Right to Restrict the Use of Sensitive Personal Information
5. The Right to Opt-Out of the Sale or Sharing of their Personal Information
6. The Right to Not Be Retaliated for Exercising these Rights

Each of these general rights are subject to detailed requirements and exceptions that must be carefully considered and addressed by employers, who must give appropriate notification to employees.  Employers’ data subject to the CPRA includes only information collected on or after January 1, 2022.  Given the suspended enforcement, it is presently uncertain whether employers will be expected to be in compliance through a “look back” period that could apply as early as the enactment date of January 1, 2023, or whether employers will be given a pass on compliance until the enforcement stay expires on March 29, 2024. In any event, employers who may be subject to the amended CPRA would be well advised to start their compliance efforts as soon as possible, and should contact qualified counsel to guide their efforts.

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The Conkle Firm Welcomes Kelly Peterson, Loyola Law School Class of 2023

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Conkle, Kremer & Engel congratulates Kelly Peterson on her recent graduation from Loyola Law School. After completing her second year of school, Kelly worked as a summer associate at CK&E and continued to work as a law clerk with the firm until she began her bar review studies after graduation. While at Loyola, Kelly was on the board of the Women in Entertainment Law Society, served as a production editor on Loyola’s Entertainment Law Review, and volunteered at a non-profit (PESA) to help minors participate in diversion programs.

Before entering law school, Kelly graduated from The University of Michigan with a degree in Philosophy and a minor in Law, Justice, and Social Change. Kelly has a passion for intellectual property law and has experience working across various legal fields, including copyright law, trademark law, environmental law, contract law, and mass tort litigation.

We are very pleased that Kelly will be joining CK&E in September while awaiting results of the bar exam.

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Start at the End: Planning for Termination of Sales Representative Relationships

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Conkle, Kremer & Engel attorney Evan Pitchford recently published Start at the End: Planning for Termination of the Principal-Representative Relationship in the April 2023 edition of Agency Sales, the nationwide publication of the Manufacturers & Agents National Association (MANA).  Although no one likes to think about the potential end of a business relationship just when they finally succeeded in getting it off the ground, it is wise for sales representatives and principals alike to do just that.

Thoughtful preparation for the eventual termination of the sales representatives’ relationship will greatly improve the relationship throughout its existence, by making clear the terms that will apply as it comes to an end.  To understand their ongoing duties to each other, both parties should clearly understand the consequences of a termination under the various circumstances that may apply, such as a change by the principal to direct sales, contractual breaches, or just dissatisfaction of either side.  Specialized state statutes directed to sales representative contracts sometimes limit some of the termination provisions, but such statutes typically allow the parties to establish most or all of the terms for themselves.  It is definitely not wise for either side to just assume an applicable state statute will define what happens upon termination.

There are a great many options for termination provisions, including absolute cutoffs upon termination (which may be subject to “procuring cause” post-termination sales commission claims in some states), to timed durations of sales commission tails based on when the commission is considered earned, to phased termination extending commission tale periods based on longevity or achievement.  The only limits to the terms that can be agreed upon are the requirements of each state’s specialized sales commission statutes and the imagination and negotiating leverage of the parties.  Parties considering sales commission agreements are well-advised to seek the counsel of attorneys who are very familiar with sales representatives laws and practices, such as  attorneys at the Conkle firm.

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The Conkle Firm Returns to Cosmoprof Bologna

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Conkle Kremer & Engel returned to attend Cosmoprof Worldwide Bologna for 2023.  Beauty’s biggest trade show was back in full swing and CK&E attorneys Mark Kremer and Amanda Washton attended to help clients, meet new clients, and see all of the latest innovations.

Amanda Washton at Cosmoprof Bologna 2023

It was easy to see why Cosmoprof Worldwide Bologna is considered to be the leading worldwide event for the professional beauty sector. In 2023, over 2,984 exhibiting companies from more than 64 countries participated.  More than 250,000 visitors from 153 countries chose to attend Cosmoprof Worldwide Bologna as an essential time for their business.  CK&E attorneys were based at the California Trade Alliance’s California Pavilion, at which CK&E sponsored a meeting room for advice to be given and deals to be made.  CK&E also provided food and wine to refresh the happy exhibitors.  The personal care products industry in California is so large and established that California is still the only state in the U.S. to sponsor its own pavilion, nestled among the many country pavilions (including the U.S. Pavilion).

When not helping clients in their booths or at the meeting room, CK&E attorneys enjoyed visiting the specialty Cosmoprof sections in the COSMO Perfumery & Cosmetics and the COSMO Hair, Nail, and Beauty Salon sections of the show.  They met manufacturers and distributors (large and small), beauty consultants and professionals throughout the world, to add to the firm’s growing network of beauty industry contacts.

Makeup and skincare products that focused on sustainability and inclusivity were highlighted at the show.  Owing to consumers’ increasing environmental consciousness, use of biodegradable packaging represented a clear trend.  Inclusivity was everywhere with a clear influx of gender-neutral lines as well as representation of products specifically designed for all races, ethnicities and ages.  In fact, the Cosmo Trends portion of the show presented products specifically focused on “menopause wellness.”  It is clear that the cosmetics and beauty industry is leading the way in approaching and “celebrating otherness,” which was the theme of the CosmoTrends exhibit at the show.Moroccanoil Show at Cosmoprof Bologna 2023

CK&E attorneys look forward to attending Cosmoprof and other industry events in the future, to continue to help our clients, meet future clients, and stay up to date on personal care and beauty trends and evolving business needs.  Our attorneys continue to pride themselves on keeping abreast of industry developments to help our clients, from startups to mature businesses, to grow and protect their brands and businesses in domestic and international markets.

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AB51, California’s Law Against Mandatory Employee Arbitration Agreements, is Invalidated

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California employers – especially those that required employees to sign arbitration agreements – have reason to celebrate. On February 15, 2023, the United States Ninth Circuit Court of Appeals in Chamber of Commerce v. Bonta, (Case No. 20-15291) 2023 WL 2013326 (9th Cir. Feb. 15, 2023), ruled that AB 51, a California law effectively prohibiting and criminalizing mandatory arbitration provisions in employment agreements, is invalid because it is preempted by the Federal Arbitration Act (FAA).

This development was not unexpected, as the U.S. Supreme Court has rendered a series of decisions supporting arbitration and striking down state laws prohibiting arbitration clauses in employment contracts as violations of the FAA. Yet despite this precedent, the California legislature has tried time and time again to enact anti-arbitration laws that creatively seek to avoid FAA preemption. AB 51 was the most recent attempt to circumvent the FAA.

AB 51 added California Labor Code Section 432.6, which prohibited employers from: (1) requiring employees to waive, as a condition of employment, the right to litigate certain claims in court; and (2) retaliating against applicants for employment or employees based on their refusal to waive such rights. Id. at (a) & (b). These two prohibitions by themselves would almost surely be preempted by the FAA but the California legislature sought to avoid that result by adding § 432.6(f), providing that nothing “in this section is intended to invalidate a written arbitration agreement that is otherwise enforceable under the [FAA].” To give the statute teeth, AB 51 also amended other codes to impose civil and criminal liability on an employer who violates Labor Code Section 432.6. Together, these provisions had the strange effect of imposing criminal and civil liability on employers who enter into arbitration agreements that are valid and enforceable.

The Chamber of Commerce of the United States filed a lawsuit seeking to declare that AB 51 was preempted by the FAA. In 2020, the trial court granted temporary injunctions against enforcement of AB51, because the court found that the Chamber of Commerce was likely to succeed in establishing that AB51 is preempted by the FAA. For that reason, employers did not feel the brunt of AB51 while the challenge made its way through appellate court.

The Ninth Circuit Court of Appeals (after some unusual twists, including a published decision that was later withdrawn by the Court) ultimately agreed with the trial court. The Ninth Circuit held that although AB 51 does not expressly prevent the formation of employment contracts containing an arbitration provision, it clearly disfavors the formation of arbitration agreements by placing civil and criminal liability on employers who require employees to sign arbitration agreements. That kind of penalty is an exception to generally applicable law that allows employers to require agreements, such as confidentiality agreements, as a condition of employment. The Ninth Circuit noted that the Supreme Court has held that “state rules that burden the formation of arbitration agreements stand as an obstacle to the FAA.” Kindred Nursing Centers Ltd. Partnership v. Clark, 137 S.Ct. 1421, 1423 (2017). In addressing AB 51’s strange mechanism of imposing liability for the formation of valid contracts, the Court held that that “[a] state rule interferes with arbitration if it discriminates against arbitration on its face or if it covertly accomplishes the same objective by disfavoring contracts that have the defining features of arbitration agreements.” Id. The Court held that “[b]ecause the FAA’s purpose is to further Congress’s policy of encouraging arbitration, and AB 51 stands as an obstacle to that purpose, AB 51 is preempted.” Id., at *10.

California employers should welcome this decision. The decision clarifies that businesses have broader freedom to contract as they see fit, and that it is permissible, even in California, to require employees to sign mandatory arbitration provisions as a condition of employment. The overall perception is that arbitration results in faster, less expensive resolution of employee-employer disputes, and keeps employment disputes out of California courts. Still, there are other schools of thought that believe that employment arbitrations can be more expensive for employers than the courts because private arbitrators often charge high hourly rates, the fees and costs of the arbitration must be advanced by employers, and dispositive motion victories (for example, a successful motion to dismiss a frivolous claim) are less common in arbitration. As well, even if arbitration is enforceable some employees may file their claims in court in the hope that the employer fails to take action to enforce arbitration.

Moreover, there are important limitations on employment arbitration agreements in California. In Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal.4th 83 (2000), the California Supreme Court held that employer-employee arbitration agreements may be “unconscionable” and unenforceable if they do not include provisions for: (1) a neutral arbitrator; (2) all remedies allowed under statutes; (3) adequate discovery procedures; (4) a written and well-reasoned arbitration decision; and (5) the employer’s payment of all costs unique to the arbitration process itself.

It is predictable that the same labor groups that supported AB 51 will continue to try to develop alternative measures to restrict employment arbitration agreements. Employers are well-advised to consult with well-qualified employment attorneys to stay on the right side of the rapidly changing laws. The attorneys at the Conkle firm stay abreast of developments and are well equipped to help your business navigate all aspects of wage & hour, discrimination, class actions, Private Attorney General (PAGA) claims and employment law, including the intersection of employment arbitration and litigation. Conkle, Kremer & Engel attorneys have many years of experience drafting arbitration provisions in conformance with California law and handling employment disputes—whether in arbitration or litigation.

Amanda Washton and Alec Pressly

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If Your Cosmetics Use Fragrance or Flavor, this New California Legislation May Affect You

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California cemented its status as the nation’s leader of cosmetics legislation when it passed the Cosmetic, Fragrance and Flavor Ingredient Right to Know Act of 2020 (“CFFIRKA”). Effective January 1, 2022, California’s newest cosmetic reporting law requires cosmetic companies to publicly disclose all fragrance and flavor ingredients in their products that are found on one of 22 “designated lists”. CFFIRKA supplements the state’s Safe Cosmetics Act (SCA), which for more than a decade has required companies to report to the California Department of Public Health (CDPH) Safe Cosmetics Program whether any of their cosmetic products contain chemicals known or suspected to cause cancer or reproductive toxicity. Now, the reporting requirements extend to fragrances and flavor ingredients that may pose health hazards.

Many cosmetic products contain fragrances or ingredients that give products flavor. In enacting CFFIRKA – a first-of-its-kind consumer “right-to-know law”, the state was concerned that some fragrance and flavor ingredients may have negative health effects, especially to those who are frequently exposed, such as salon workers. Thus, the new law is intended to provide the public with knowledge about the use of such fragrances and flavor ingredients in both retail and professional-use cosmetics, so consumers and workers can determine whether and how to mitigate their exposure.

Each entity whose name appears on the label of a cosmetic product must comply with CFFIRKA, which means companies such as distributors and importers may also have reporting obligations. CFFIRKA requires disclosure if a cosmetic product sold in California contains fragrance and/or flavor ingredients included on one or more of the 22 designated lists identified in California Health and Safety Code Section 111792.6. Among others, the lists include those chemicals on California’s Proposition 65 list as well as chemicals classified by other federal and state agencies and international bodies. The ingredients on the 22 designated lists are subject to change as each list is revised, requiring companies to pay special attention to such changes. All cosmetic products with reportable ingredients sold in California after January 1, 2022, regardless of date of manufacture, must be reported under this mandate. However, there is no requirement under CFFIRKA to make changes to product labels.

Additionally, cosmetic companies must disclose specific “fragrance allergens” if the allergens are present at or above 0.01 percent (100 parts per million) in rinse-off cosmetic products, or at or above 0.001 percent (10 parts per million) in leave-on cosmetics products. The subset of CFFIRKA reportable ingredients called “fragrance allergens” have distinct reporting requirements, and must be reported regardless of their intended purpose in the product (i.e. they must be reported even if they are not used to impart scent or counteract odor). In addition to disclosing the reportable fragrance, flavor, or allergen ingredients, businesses must also disclose each ingredient’s Chemical Abstracts Services (CAS) number, the Universal Product Code (UPC) of the cosmetic product that includes the ingredient, and whether the cosmetic product is intended for professional or retail cosmetic use.

Information reported by companies under CFFIRKA (as well as under the SCA) is made publicly available through the CDPH’s Safe Cosmetics Database, which is available at https://cscpsearch.cdph.ca.gov/search/publicsearch. To date, more than 90,000 cosmetic products have been reported to the CDPH.

Conkle Kremer & Engel attorneys stay current on regulatory and legal developments that affect the cosmetics business.

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Changing Messages from Courts on AB 51: Now Employers Cannot Require Arbitration Agreements

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Note:  For updated developments on the long-running saga of AB 51, see our February 2023 blog post: “AB51, California’s Law Against Mandatory Employee Arbitration Agreements, is Invalidated”

For those employers who have been following the evolving history of Assembly Bill 51 (“AB 51”), which regulates California employers’ ability to have agreements to arbitrate any disputes with their prospective or hired employees, there is a new twist:  In a September 15, 2021 decision, Chamber of Commerce of the U.S., et al. v. Bonta, et al., Case No. 20-15291, the Ninth Circuit Court of Appeal reversed a District Court decision to conclude that the Federal Arbitration Act (“FAA”) did not preempt California AB 51’s ban on employment conditioned upon mandatory arbitration agreements. As explained below, this Ninth Circuit ruling may soon have a substantial impact on employers’ arbitration policies going forward.

In 2019, California passed AB 51, which added section 432.6 to the California Labor Code and section 12953 to the California Government Code to generally prohibit employers from requiring applicants or employees to agree to arbitrate as a condition of employment. AB 51 made it illegal for an employer to require applicants or employees, as a condition of employment, continued employment, or the receipt of any employment-related benefit, to waive any rights, forum, or procedure established by the California Fair Employment and Housing Act (“FEHA”) and the California Labor Code. The Conkle firm has written previously about the potential effects of AB 51.

AB 51 had been set to take effect on January 1, 2020, but on December 30, 2019, U.S. District Court Judge Kimberly Mueller issued a preliminary injunction, preventing AB51 from taking effect. Judge Mueller concluded that “AB 51 placed agreements to arbitrate on unequal footing with other contracts and also that it stood as an obstacle to the purposes and objectives of the FAA.” Bonta, No. 20-15291 at 12. In other words, Judge Mueller decided that AB 51 discriminated against arbitration agreements in a manner that is prohibited by the superseding federal law of arbitrations, the FAA.

California appealed Judge Mueller’s ruling.  On September 15, 2021, the U.S. Court of Appeals for the Ninth Circuit issued a split (2-1) decision partially reversing the District Court’s order. The Ninth Circuit held that the FAA did not preempt AB 51 with respect to its prevention of conditioning employment on the signing of an arbitration agreement. On this basis, the Ninth Circuit vacated the preliminary injunction that had stopped AB 51’s enforcement, so at present there is nothing stopping AB 51 from taking effect very soon.

For employers, this means that, unless there are further decisions by the Ninth Circuit or the United States Supreme Court, AB 51’s mandate that employers cannot condition employment or continued employment on the signing of an arbitration agreement will shortly go into effect. However, employers should be aware that AB 51 does not apply retroactively, which means that arbitration agreements previously signed by employers before AB 51 can still be enforced.  ([Proposed] Labor Code §432(f).)

A common question Conkle, Kremer & Engel attorneys are receiving is whether, even under AB 51, an employer is allowed to request that employees or prospective employees sign an arbitration agreement. The answer is yes. However, because the Ninth Circuit’s decision is somewhat muddled on this point, there is no clear answer to the natural follow up question, “What can I do if the employee refuses?”

The Ninth Circuit reasoned that the enforcement provisions of AB 51 are preempted “to the extent that they apply to executed arbitration agreements covered by the FAA.” Bonta, No. 20-15291 at 29. The dissent in Bonta attacks the majority’s reasoning as illogical:

In case the effect of this novel holding is not clear, it means that if the employer offers an arbitration agreement to the prospective employee as a condition of employment, and the prospective employee executes the agreement, the employer may not be held civilly or criminally liable. But if the prospective employee refuses to sign, then the FAA does not preempt civil and criminal liability for the employer under AB 51’s provisions.

Bonta, No. 20-15291 at 47. As the dissent argues, the majority’s reasoning could result in liability to the employer where the employer fails while attempting to engage in the prohibited conduct of forcing an employee or prospective employee to sign an arbitration agreement, but the employer would not have liability when the employer succeeds in engaging in that same prohibited conduct.

What does this ultimately mean for employers? We expect the Ninth Circuit’s ruling to be challenged by a request for an en banc review by a larger panel of the Ninth Circuit’s justices, or by a writ to the U.S. Supreme Court (which has recently been quite hostile to Ninth Circuit rulings that it has chosen to review).  Such a challenge could result in yet another “stay” that would effectively restore the injunction issued by Judge Mueller and preclude AB 51 from taking effect. However, unless a stay is issued, AB 51 is set to go into effect in the near future.

While much uncertainty remains as a result of the Ninth Circuit’s ruling, AB 51 will increase potential liability for employers that condition employment on arbitration agreements, as well as provide more power to employees who do not wish to arbitrate. Employers that currently have policies conditioning employment or continued employment on the signing of an arbitration agreement should continue to monitor the status of AB 51, should prepare for the possibility that it will not be able to require arbitration agreements going forward and should reevaluate the benefits and risks related to conditioning employment on the signing of an arbitration agreement.

CK&E attorneys keep updated on developments in the law that affect employers in California, including their rights to arbitrate disputes with applicants and employees.  Stay tuned for additional developments in this saga of AB 51.

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Conkle Firm Attorneys Attend Cosmoprof North America 2021 – Yes, In Person

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The 2020 Cosmoprof North America show was cancelled due to the COVID-19 pandemic but (after some delay) the show went on for 2021. Conkle, Kremer & Engel attorneys Amanda Washton and Sherron Wiggins attended this year’s Cosmoprof North America show on August 29, 2021 in Las Vegas, Nevada.  Attendance was lower than usual, of course, particularly in light of recent concerns about the Delta variant.  But the safety of all participants was paramount to the organizers and it showed.  The Cosmoprof attendees spread out and managed to fill the hall with enthusiasm while maintaining proper social distancing and appropriate masking.

Our attorneys visited the six specialty Cosmoprof sections, such as “Discover Green” featuring green, eco-friendly, clean, and organic products such as Orgaid facial sheet masks. Another notable section was “Tones of Beauty,” dedicated to beauty products for multicultural consumers such as Ceylon Skincare products by Anim Labs formulated to address skin issues that men, especially men of color, experience.

Sherron Wiggins and Amanda Washton at Cosmoprof NA 2021Our attorneys also spent time in the “Cosmo Trends” section of the show, where they reviewed product classes that have surged in popularity during the global COVID-19 pandemic. For example, skin barrier products designed to balance the skin’s microbiome and to kill pathogens gained considerable popularity in the market during the pandemic, likely due to increased consumer awareness and sensitivity to bacteria, micro-organisms, and viruses. As well, most of us have done more than a few Zoom meetings during the pandemic, and have had a chance to examine our appearance on video screens, perhaps more than we would have wished.  This fact was not missed by entrepreneurs who developed and promoted a variety of non-surgical treatments and devices for skin conditioning and application of beauty products. Examples included skin and under-eye serums, and skincare tools that apply LED, EMS, ultrasound, radio frequency, ion fusion, and sonic pulsation.

Makeup and skincare products that focused on overall skin health and a glowing appearance also gained popularity as consumers gradually ventured out to attend small gatherings of family and friends.  Many of these kinds of products were featured in the “Discovery Beauty” section of the show, presenting an array of “conscious beauty products,” such as Urban Secrets.  CBD-inclusive cosmetic products continued to increase in strength, this year warranting an entire dedicated section at Cosmoprof.  Finally, owing to consumers’ increasing environmental consciousness, use of biodegradable packaging represented a clear trend.

Whether virtually or in person, CK&E looks forward to attending Cosmoprof and other industry events in the future, to help us continue to help our clients, meet future clients, and stay up to date on personal care and beauty trends and evolving business needs.  Our attorneys pride themselves on keeping abreast of industry developments to help our clients, from entrepreneurs to mature businesses, grow and protect their brands and businesses.

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CCPA Metrics Disclosure Requirement Takes Effect July 1, 2021

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Effective July 1, 2021, annual public disclosure requirements will start to apply to every business that is required to comply with the California Consumer Privacy Act (“CCPA”), and which knows or should know that (alone or in combination) it  buys, receives for the business’s commercial purposes, sells, or shares for commercial purposes the personal information of 10 million or more California residents in a calendar year. This requires these businesses to compile the following metrics for the previous calendar year (January 1, 2020 through December 31, 2020):

  1. The number of requests to know that the business received, complied with in whole or in part, and denied;
  2. The number of requests to delete that the business received, complied with in whole or in part, and denied;
  3. The number of requests to opt-out that the business received, complied with in whole or in part, and denied; and
  4. The median or mean number of days within which the business substantively responded to requests to know, requests to delete, and requests to opt-out.

This information must be disclosed in the business’s privacy policy or posted on its website and accessible from a link included in the privacy policy.  The metrics must be updated annually by July 1. In the disclosure, a business may choose to disclose the number of requests that were denied in whole or in part because the request was not verifiable, was not made by a consumer, called for information exempt from disclosure, or was denied on other grounds.

To review, the CCPA, which became effective on January 1, 2020, grants California consumers the right to control the personal information that businesses collect about them. Through the CCPA, California residents have the right to know what personal information is being collected, whether their personal information was sold or disclosed (and to whom), and may request that businesses delete their personal information.  Currently, only for-profit businesses that collect consumers’ personal information and meet one or more of these criteria must comply: (1) the business has an annual gross revenue in excess of $25 million; (2) the business collects, buys, receives, sells, or shares the personal information of 50,000 or more California-resident consumers, household, or devices; or (3) the business derives 50% or more of its annual revenue from selling consumers’ personal information. For more information about the rights afforded to California residents, and businesses’ obligations under the CCPA, see below for some of our previous CCPA blog posts.

Among other requirements, all businesses that are required to comply with the CCPA must maintain records of CCPA consumer requests and how the business responded to the requests for at least 24 months. These businesses are required to implement and maintain reasonable security procedures and practices in maintaining these records. Such records may be maintained in a ticket or log format, provided that the ticket or log includes the date of request, nature of request, manner in which the request was made, the date of the business’s response, the nature of the response, and the basis for the denial of the request if the request is denied in whole or in part.

In addition, the businesses must establish, document, and comply with a training policy to ensure that all individuals responsible for handling consumer requests made under the CCPA or the business’s compliance with the CCPA are informed of all the requirements in these regulations and the CCPA.

Attorneys at Conkle, Kremer & Engel are staying current with the CCPA and to guide their clients through compliance with this sweeping data privacy law.

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Annual PCPC Virtual Summit Features Conkle Firm Attorneys

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Attorneys John Conkle, Zachary Page and Kim Sim helped lead off the first day of the Personal Care Product Council (PCPC)’s Virtual Summit on May 11, 2021 with a dynamic and timely presentation on the changing federal and state regulatory landscape for cosmetic and personal care products.  Consistent with the theme of the Virtual Summit – “Embracing the Future of Beauty” – they covered litigation trends in California and across the country in connection with product advertising and marketing claims, from the use of natural and clean/green claims such as “botanical” and “plant-based” to the use of “oil-free” and claims related to the “nourishment” and “revival” of hair.  They also spoke about other areas of the law uniquely affecting businesses as they navigated doing business during a global pandemic and preparing for a post-pandemic future, from privacy concerns to website accessibility, and issues related to product subscriptions and cause marketing.  These are areas that have taken on vital importance as businesses transition to e-commerce and consumers  increasingly focus their shopping online.

Conkle, Kremer & Engel’s presentation was featured in HBW Insight Informa Pharma Intelligence on May 13, 2021.  CK&E has been a frequent participant in other PCPC industry summits, but this year the three-day Virtual Summit was a seamless combination of the PCPC’s Annual Meeting and Legal & Regulatory Conference and marked the first time both events were combined into one and held entirely online.

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