California Organic Products Act – Conkle, Kremer & Engel, PLC

Annual PCPC Virtual Summit Features Conkle Firm Attorneys

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.

16
MAY

ADA - Americans with Disabilities Act, Advertising and Labeling, Beauty Industry, Brand Protection, California Organic Products Act, California Trade Regulations, Consumer Legal Remedies Act, Contracts, Business and Finance, Food, Craft Beer and Nutrition, Green Chemistry Initiative, Manufacturing, Personal Care Products, Regulatory Compliance, Safe Cosmetics Act, Safer Consumer Products Regulations

The Conkle Firm Presents at Personal Care Product Council’s Emerging Issues Conference in Marina del Rey

Posted by: Conklelaw

Zachary Page and Eric Engel being introduced for PCPC Emerging Issues Panel on Product Counterfeiting and Brand Protection

Conkle, Kremer & Engel attorneys Eric S. Engel and Zachary Page presented to beauty industry professionals on hot and developing legal issues in brand protection, grey market and product counterfeiting at the Personal Care Products Council’s November 20, 2019 Emerging Issues Conference. The Conference was held on the 10th Floor of the Marina del Rey Marriott, with a spectacular view over the nearby marina and beach.

Among the topics covered by Zach were issues of registering U.S. trademarks for CBD products, and other previously unregisterable brands. The 2019 U.S. Supreme Court decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com put new importance on registering important copyrights well in advance of their need for infringement claims, and Zach discussed the close relationship with the Digital Millennium Copyright Act’s “DMCA Clock” to takedown infringing online publications. Trends toward false advertising claims based on “natural” and “organic” labeling were also discussed, as were the dramatic increase in medical claim class action and other lawsuits. Zach also briefed the gathered industry experts on the various issues that affect uses of models and others without adequate documentation of consent, which can raise serious right of publicity as well as copyright concerns.

Eric addressed grey market and counterfeiting case development, including the importance of creating “materially different” packaging for U.S. and foreign products. Simple and low-cost ways to help DHS/CBP protect brands against importation of foreign-labeled versions of their own products, as well as counterfeits, was outlined. Also outlined were cost-effective techniques such as recording trademarks online with CBP’s IPR e-Recordation system, Lever Rule Protection, providing CBP with effective Product Identification Training Guides (PITG), conducting IPR Webinars for CBP distribution, and posting e-Allegations online. On combating counterfeiting, Eric addressed Amazon.com specifically because it now accounts for more than half of U.S. online consumer sales, and more than half of Amazon’s online sales are on behalf of third parties in its “marketplace.” Amazon acknowledges no responsibility for sales in its marketplace, beyond closing seller accounts and refunding its customers’ money when they can show that they were sold counterfeit and defective products. Eric discussed the developments in Amazon’s selling and fulfillment practices and in the law of counterfeiting and products liability that suggest that Amazon’s currently-strong denials of responsibility for third party’s products and sales practices may be less compelling in coming years.

CK&E attorneys regularly give presentations to personal care product industry professionals to help them understand and proactively address the latest legal concerns that affect and can inhibit growth of their businesses.

22
NOV

Advertising and Labeling, Beauty Industry, Brand Protection, California Organic Products Act, California Trade Regulations, Consumer Legal Remedies Act, Copyrights, Intellectual Property, International Trade, Litigation, Arbitration and Mediation, Manufacturing, Patents, Personal Care Products, Sales, Trademarks

Amazon, Amazon.com, Cannabidiol, CBD, cbp, Customs and Border Protection, Department of Homeland Security, DHS, Digital Millennium Copyright Act, DMCA, DMCA Clock, e-Recordation, Foreign Label Goods, Foreign Label Products, Fourth Estate Public Benefit Corp. v. Wall-Street.com, Fulfillment by Amazon, Gray Market, Gray Market Goods, Grey Market, Grey Market Goods, IPR, IPRR, Lever Rule, Material Differences, Materially Different, Parallel Imports, Parallel Market Sales, PCPC, Personal Care Products Council, PITG, Product Identification Training Guides

Cosmoprof North America Features Challenging CBD, Natural and Organic Product Lines

Posted by: Evan Pitchford

On July 29 and 30, 2018, Conkle, Kremer & Engel continued its annual firm attendance at Cosmoprof North America in Las Vegas, visiting with longtime and new clients and observing new brands and trends in the personal care industry. This year’s edition of Cosmoprof had over 36,000 attendees with a record-breaking 1,278 exhibitors from 45 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 and issues.

This year, trends included substantial expansion of the mens’ care and beard care sector, along with CBD-infused cosmetics and hair care products and natural and organic hair regrowth formulas. Organic products sold in California must meet strict requirements, and Products with “natural” claims can present special challenges and risks, as CK&E has addressed in previous blog posts, such as “What are Natural Products Anyway?” A new twist has been recent growth (no pun) in “hair regrowth” products labeled as “natural” or “organic” . Those classes of products face special issues in addition to whether they can fairly be called “natural” or “organic,” in that hair regrowth claims can at times run afoul of federal prohibitions on products that make drug-like claims without FDA approval, as well as federal and state labeling and advertising regulations. Finally, a new class of beauty and hair care products are based on Cannabidiol (CBD) content, taking advantage of increased acceptance of cannabis-based products. Yet CBD products continue to pose their own special issues, which will be the subject of an upcoming www.conklelaw.com blog post. CK&E is well-versed in counseling clients on all such issues, from brand protection, vendor and distribution issues to the latest CBD, natural and organic product concerns.

Lastly, foremost on the minds of many manufacturers and distributors who sell in California were the new requirements for Proposition 65, the well-known California law requiring “Prop 65” warnings for products which contain chemicals known to cause cancer or reproductive harm. New warning label requirements go into effect on August 30, 2018, which CK&E has already summarized on its blog. CK&E is actively advising manufacturers about the most efficient and effective ways to address the changes and avoid the risks of inadvertent violations.

CK&E’s attorneys continue to pride themselves on keeping abreast of developments in the personal care market, along with assisting clients of all sizes with growth and protection of their brands and interests. CK&E is an active member of the Professional Beauty Association, the Personal Care Products Council, and other important industry trade organizations.

7
AUG

Advertising and Labeling, Beauty Industry, Brand Protection, California Organic Products Act, California Trade Regulations, Copyrights, Manufacturing, Personal Care Products, Proposition 65, Trademarks

Brand Protection, California Organic Products Act, canabis, Canabis Oil, Cannabidiol, cannabinoids, cannabis, Cannabis Oil, CBD, COPA, Cosmoprof, Cosmoprof 2018, cosmoprof las vegas, Cosmoprof NA, cosmoprof north america, Distribution, Distributors, Hair Regrowth, Hemp, Natural, Organic, PBA, PCPC, Prop 65, Prop 65 Warnings, Proposition 65, Proposition 65 Warnings

The Conkle Firm Presentation at 2018 PCPC Legal & Regulatory Conference

Posted by: Conklelaw

On May 9, 2018 Conkle, Kremer & Engel attorney John A. Conkle presented on “The State of the States” panel at the 2018 Personal Care Products Council’s Legal & Regulatory Conference. The panel focused on the increasingly strong role of state legislatures and state regulatory bodies in addressing issues of importance to the personal care products and cosmetics industries. The panel featured lively discussion of issues arising from the evolving patchwork of laws and regulations among numerous states, including California’s infamous Proposition 65, slack fill laws, and labeling and ingredient disclosure regulations, ingredient phase-out requirements and outright bans, volatile organic compound limitations to protect air quality, and animal testing regulations. The discussion included the importance of preservation and presentation of evidence to support manufacturers’ positions, including testimony in depositions and at trial.

The panel’s presentation is available here for review. Contact John Conkle to discuss the latest issues affecting the state of the personal care products and cosmetics industries.

10
MAY

Advertising and Labeling, Beauty Industry, Brand Protection, California Air Resources Board, California Organic Products Act, California Trade Regulations, Consumer Legal Remedies Act, Green Chemistry Initiative, Proposition 65, Safe Cosmetics Act, Safer Consumer Products Regulations

PCPC, PCPC Legal and Regulatory Conference, Personal Care Products Council

The Conkle Firm to Present at 2018 PCPC Legal & Regulatory Conference

Posted by: Conklelaw

Conkle, Kremer & Engel attorney John A. Conkle will be on the panel opening the 2018 Personal Care Products Council’s Legal & Regulatory Conference. The panel will present “The State of the States,” which will focus on the increasingly strong interest of state legislatures and state regulatory bodies in addressing issues of importance to the personal care products and cosmetics industries.

States have come to recognize that, with the U.S. Congress largely gridlocked and federal regulatory agencies in a deregulation mood, the path is open for the states to regulate consumer industries in manners that they deem fit. The result is a continuously evolving patchwork of laws and regulations that can be difficult for industry participants to navigate.

Issues to be discussed at the May 9, 2018 panel presentation include California’s infamous Proposition 65, slack fill laws, and labeling and ingredient disclosure regulations that include even public databases disclosing products’ ingredients found by state governments to be detrimental. Further, state regulations can include ingredient phase-out requirements and outright bans, volatile organic compound limitations to protect air quality, and even animal testing regulations that can affect industry participants’ ability to compete in international trade.

A lively discussion is inevitable given the rich and topical subject matter and the vital industry interests affected. The rest of the Legal and Regulatory Conference program should be just as engaging, covering topics such as employment law, cannabis (THC, CBD, marijuana extracts and hemp) in cosmetics and personal care products. The many other topics to be covered in the three-day conference in Savannah, Georgia can be found in the conference program.

7
MAY

PCPC, PCPC Legal and Regulatory Conference, Personal Care Products Council

The Conkle Firm Trending At Indie Beauty Expo

Posted by: Conklelaw

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.

30
JAN

Advertising and Labeling, Beauty Industry, Brand Protection, California Organic Products Act, Intellectual Property, Personal Care Products, Proposition 65, Regulatory Compliance

100% natural, All Natural, California Organic Products Act, COPA, Indie Beauty, Indie Beauty Expo, labeling, labels, Natural, Organic, vegan

CK&E Sponsors 2016 PCPC Emerging Issues Conference

Posted by: Conklelaw

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.

2016-11-10-pcpc-mike-thompson-dan-schnur-darius-anderson-edited

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.

10
NOV

Beauty Industry, California Organic Products Act, California Trade Regulations, Green Chemistry Initiative, Manufacturing, Personal Care Products, Proposition 65, Regulatory Compliance, Safe Cosmetics Act, Safer Consumer Products Regulations

Emerging Issues Conference, PCPC, Personal Care Products Council

The Conkle Firm Advises BIMA Participants on IP and Regulatory Issues

Posted by: Conklelaw

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.

28
JUN

Advertising and Labeling, Beauty Industry, Brand Protection, California Organic Products Act, California Trade Regulations, Copyrights, Intellectual Property, International Trade, Personal Care Products, Proposition 65, Regulatory Compliance, Safe Cosmetics Act, Safer Consumer Products Regulations, Trademarks

Beauty Industry Market Access, BIMA, California Air Resources Board, California Organic Products Act, Prop 65, Proposition 65. COPA

The Conkle Firm Joins PCPC California Lobby Day 2016

Posted by: Conklelaw

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.

11
APR

Beauty Industry, California Organic Products Act, California Trade Regulations, Manufacturing, Personal Care Products, Proposition 65, Regulatory Compliance, Safe Cosmetics Act, Safer Consumer Products Regulations

California Lobby Day, DTSC, OBED, OEHHA, PCPC, Personal Care Products Council

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

Posted by: Eric S. Engel

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.

26
DEC

Advertising and Labeling, Beauty Industry, California Organic Products Act, California Trade Regulations, Consumer Legal Remedies Act, Food, Craft Beer and Nutrition, Manufacturing, Regulatory Compliance, Sales, Unfair Competition

California Organic Products Act, Class Action Lawsuits, Class Actions, CLRA, Consumers Legal Remedies Act, COPA, fraud, labeling, misrepresentation, Organic, Unfair Business Practices, Unfair Competition

Page 1 of 2 12