Consumer Legal Remedies 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

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

What are “Natural” Products Anyway?

Posted by: John A. Conkle

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.

24
MAR

Advertising and Labeling, Beauty Industry, Brand Protection, California Trade Regulations, Consumer Legal Remedies Act, Food, Craft Beer and Nutrition, Manufacturing, Personal Care Products, Regulatory Compliance

100% natural, All Natural, False Advertising, Federal Trade Commission, FTC, Natural

At Critical Juncture, CK&E Defeats Consumer Class Action Against Charity

Posted by: Conklelaw

On October 13, 2016 Conkle, Kremer & Engel attorneys Eric S. Engel and Zachary Page successfully defended a charitable organization faced with an attempted consumer class action. In Delgado v. Cars 4 Causes, a charity that accepted donations of vehicles was charged with fraud, false advertising, unfair competition and violation of the California Consumer Legal Remedies Act (CLRA). Plaintiff Delgado had donated a boat and trailer to Cars 4 Causes, and later complained that Cars 4 Causes did not adequately disclose its fees before providing a portion of the net proceeds from sale of the donation to Delgado’s designated third party charity.

In a class action, a critical juncture is reached when the plaintiff files a motion to ask the court to certify a class. Without a class certification, the action is just an individual claim, often with little value on its own. In Delgado v. Cars 4 Causes, CK&E was able to present compelling evidence and legal arguments that the claims of the prospective class members did not have sufficient common issues of fact, and that the proposed class members were not sufficiently ascertainable, to permit class certification. When class certification is denied, courts often allow the plaintiff a second or third chance to modify his class definition or otherwise amend his claims in order to meet the class certification requirements. But in Delgado v. Cars 4 Causes, CK&E was able to present such solid evidence and legal argument that the court was convinced of the futility of any such additional chances for the plaintiff. As a result, the court denied Delgado’s motion for class certification
“with prejudice.” This permanent denial of class certification ended the plaintiff’s effort to pursue a class action against Cars 4 Causes.

CK&E attorneys have substantial experience and success in defending class actions ranging from consumer unfair competition, false advertising and CLRA claims, to employment wage and hour claims.

15
OCT

Advertising and Labeling, Class Actions, Consumer Legal Remedies Act, Unfair Competition

Cars 4 Causes, Class Actions, CLRA, Consumer Legal Remedies Act

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

The Conkle Firm Presents Hot California Regulatory Compliance Issues in New York

Posted by: Conklelaw

Conkle, Kremer & Engel attorney John A. Conkle was the featured speaker at a special presentation given on February 11, 2014 in New York, New York to business executives and lawyers.

The presentation, entitled “Are Your Products California-Bound? Dealing With California’s Unique Regulatory Schemes,” provided valuable information about and insight into such California regulatory laws and initiatives as:

Proposition 65 (California’s Safe Drinking Water and Toxic Enforcement Act of 1986)
California Safe Cosmetics Act
California Green Chemistry Initiative (the Safer Consumer Products Regulations)
California Volatile Organic Compounds (VOC) Regulations
California Organic Products Act (COPA)
California Consumer Legal Remedies Act (CLRA)

California’s vast and ever-changing regulations pose a challenge for businesses no matter where they may be located. Any business manufacturing, distributing or selling products into California needs to comply with California’s regulatory schemes to stay out of difficulty with the California Attorney General, regulatory agencies, non-governmental organizations (NGOs), bounty hunters, putative class action plaintiffs and even competitors.

CK&E was honored to team with the New York-based law firm Gottlieb, Rackman & Reisman, P.C., which specializes in intellectual property, to provide this presentation. CK&E has worked with the Gottlieb firm for nearly 25 years on matters of common interest to our clients. CK&E’s active regulatory compliance practice has helped clients in numerous industries – including such diverse areas as personal care products, alcoholic beverages, construction and recreational equipment.

6
FEB

Beauty Industry, California Organic Products Act, Consumer Legal Remedies Act, Fashion, Food, Craft Beer and Nutrition, Green Chemistry Initiative, Manufacturing, Personal Care Products, Proposition 65, Safe Cosmetics Act, Safer Consumer Products Regulations, Unfair Competition

CLRA, COPA, Gottlieb Rackman Reisman, Prop 65, SCPR, VOC

Naked Juice Labels to be Stripped of "All Natural" and "Non-GMO" Claims in False Advertising Settlement

Posted by: Conklelaw

PepsiCo has agreed to pay $9 million to settle a class action battle over its use of the words “All Natural” and “Non-GMO” (non-Genetically Modified Organism) on its Naked Juice drink products. As part of the settlement, PepsiCo agreed to change its labeling.

If approved by the district court, the settlement would resolve five separate class action lawsuits, which were consolidated with the lead case Pappas v. Naked Juice Co. of Glendora, Inc., in March 2012.

The case against PepsiCo stems from allegations that statements on the Naked Juice labels constitute false advertising. The plaintiffs sued for violation of a number of California statutes – the Consumer Legal Remedies Act (CLRA) and False Advertising and Unfair Competition Laws.

According to the plaintiffs, independent testing revealed genetically modified soy protein in some Naked Juice products. The plaintiffs also alleged that several ingredients in the Naked Juice products are non-natural, including ingredients like beta carotene and biotin which do occur naturally but are produced synthetically when added as supplements to foods, and a fiber ingredient that is produced by chemically rearranging corn starch molecules. All of these ingredients are listed in the ingredient panel, but according to the plaintiffs, a reasonable consumer wouldn’t scrutinize the ingredient list for information contradicting the plain, conspicuous statements “All Natural” and “Non-GMO.”

The settlement in the PepsiCo case is likely to lead to many more class action lawsuits against businesses that advertise their products as “natural” or “all natural.” Unlike use of the word “organic,” use of the word “natural” is not explicitly regulated by federal or state law, leaving the door open for claims of false or misleading advertising by consumers.

What’s the moral of this story? An ounce of prevention is worth a pound of cure. It is important to scrutinize health-related language used in advertising, especially on food products, and ensure there is documentation to back up claims. CK&E routinely works with clients to evaluate the language on product packaging and in advertising as part of a comprehensive risk analysis so they can make informed choices for their businesses. CK&E also has extensive experience defending clients against consumer false advertising claims.

2
AUG

Advertising and Labeling, Beauty Industry, Class Actions, Consumer Legal Remedies Act, Food, Craft Beer and Nutrition, Manufacturing, Regulatory Compliance, Sales, Unfair Competition

All Natural, GMO, Juice, Naked Juice, Natural, Non-GMO, PepsiCo