The Conkle Firm to Present on Emerging Legal Trends in Personal Care Products Industry

Posted by:

On November 19, 2014, Conkle, Kremer & Engel attorneys John Conkle and Kim Sim will speak on emerging legal trends in the cosmetic and personal care products industry at the Emerging Issues Conference in Santa Monica, California.  Their topics will include recent developments concerning hazardous waste regulation, trends in advertising and class action litigation affecting the personal care products industry, and an update on California’s regulation of volatile organic compounds in consumer products.

The Emerging Issues Conference is an annual presentation by the Personal Care Products Council.  The PCPC is the leading national trade association for the cosmetic and personal care products industry and represents the most innovative names in beauty today.  For more than 600 member companies, the PCPC is the voice on scientific, legal, regulatory, legislative and international issues for the personal care product industry. The PCPC is a leading and trusted source of information for and about the industry and a vocal advocate for consumer safety and continued access to new, innovative products.

Please join CK&E at the conference to hear important information on the latest legal trends affecting the industry.

 

Print Friendly, PDF & Email
0

California Pavilion at Cosmoprof Asia to Host Visit by U.S. Consul General

Posted by:

Conkle, Kremer & Engel is pleased to announce that Clifford A. Hart, Jr., the United States Consul General for Hong Kong and Macau, is scheduled to visit the California Pavilion at Cosmoprof Asia on November 12, 2014.  CK&E attorneys John Conkle and Kim Sim will attend Cosmoprof Asia in conjunction with the California Trade Alliance, which sponsors the California Pavilion, and they plan to be available to meet with the Consul General.  CK&E attorneys work with clients to facilitate their international business needs, from manufacturer-distributor relationships and brand protection to government relations and regulatory compliance.  If you are attending Cosmoprof Asia this year, stop by and visit the California Pavilion – it will be time well spent.

 

Print Friendly, PDF & Email
0

Chemical Peel Ingredient Trichloroacetic Acid (TCA) Requires a Proposition 65 Warning

Posted by:

Trichloroacetic acid (TCA), a chemical that is commonly used in cosmetic treatments such as chemical peels and for the removal of tattoos and treatment of skin tags, warts and moles, is now subject to Proposition 65’s warning requirement.  This means that any exposure to the chemical in California requires a warning that the chemical is “known to the State of California to cause cancer.”  The penalties for failing to provide the warning as required by Proposition 65 can be substantial:  The law authorizes civil penalties of up to $2,500 per day per violation.  In addition, attorney fees are authorized by California’s private attorney general statute – creating incentive for private Proposition 65 “bounty hunters” and their lawyers to target businesses who fail to comply.

Under Proposition 65, no legal action is authorized by the Attorney General, district attorneys or private enforcers until 12 months after the listing of that chemical.  TCA (CAS No. 76-03-9) was added to the list of chemicals known to the state of California to cause cancer on September 13, 2013.  As a result, Proposition 65 private enforcers were allowed to start sending out Notices of Violation over alleged exposure to TCA without a warning beginning on September 14, 2014.  The law permits such private enforcers to file a lawsuit 60 days after the Notice of Violation is served.

In addition to TCA, the following chemicals became subject to Prop 65 enforcement action on September 14, 2014:  chloral (CAS No. 75-87-6), chloral hydrate (CAS No. 302-17-0) and 1,1,1,2-tetrachloroethane (CAS No. 630-20-6).

Conkle, Kremer & Engel has significant experience in helping businesses understand and comply with the requirements of Proposition 65 and other regulations to avoid exposure to liability.  In addition to working with businesses to develop an effective compliance strategy, CK&E handles all aspects of Proposition 65 defense, including responding efficiently if a Notice of Violation is received.

Print Friendly, PDF & Email
0

The Conkle Firm Attends the International Congress of Esthetics and Spa

Posted by:

On Sept. 7 Conkle, Kremer & Engel lawyer Eric Engel visited the annual ICES skin care and spa trade show in Long Beach, California. The event, held each year at the Long Beach Convention Center, is one of the country’s premier shows for the professional beauty, skincare and spa and wellness industries.  It features more than 200 exhibitors, including manufacturers, distributors, spas and wellness centers, and thousands of professionals from the national and international spa and wellness market.  ICES offers a unique opportunity for CK&E to meet and interact with clients and other professionals in the beauty industry, and stay on the inside track about the industry’s latest developments and trends.

Speaking of industry trends, if you still think Proposition 65 is not a big issue for the beauty industry, take a look at this ICES booth display for Mineralogie:

Long Beach International Congress of Esthetics and Spa

Print Friendly, PDF & Email
0

The Conkle Firm Participates in PCPC California Lobby Day to Educate Lawmakers About Personal Care Products Industry Concerns

Posted by:

Conkle, Kremer & Engel attorney John Conkle recently participated in the Personal Care Products Council’s California Lobby Day, an annual PCPC event held at the Capitol in Sacramento, California.  The Personal Care Products Council (PCPC) represents the personal care and cosmetic 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, state officials, and their staff members and engage in open discussions about legislative and regulatory issues affecting the personal care industry.

The whirlwind day included 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 in attendance were Martha Guzman-Aceves (Deputy Legislative Secretary); Grant Cope (Deputy Secretary for Environmental Policy, California Environmental Protection Agency (Cal EPA)); Meredith Williams (Deputy Director of Safer Products and Workplaces Program, Department of Toxic Substances Control (DTSC)); Jacqueline Shea (United States Environmental Protection

In addition to meeting with PCPC personnel and other PCPC member representatives, the day provided a solid overview of California’s current regulatory scheme and upcoming legislation and regulations.Agency (US EPA)); and Rick Brausch (Legislative and Policy Director, DTSC).  In addition, a number of staff members from the offices of California Senators Loni Hancock and Kevin De Leon and California Assemblymembers Brian Nestande and Susan Bonilla spoke with PCPC members. The proposed pieces of legislation of most interest to the PCPC were the prohibition on the use of plastic microbeads in cosmetics, legislation to allow county weights and measure officials to regulate the information that is required to be disclosed in the sale of cosmetics, the characterization of cosmetics as unsalable hazardous waste at the retailer level, and prohibitions on animal testing.

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.

Print Friendly, PDF & Email
0

Nagoya Protocol: Response to Biopiracy Becomes Effective October 2014

Posted by:

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization became effective on July 14, 2014, with its 50th ratification.  The Nagoya Protocol will begin to have a direct impact on the personal care and cosmetics industry on October 12, 2014.

With the increased consumer demand for natural and organic products, a growing number of companies in the beauty industry are drawing on biodiversity for its rich variety of native ingredients and as a way to differentiate their products.  The use of exotic ingredients sourced from countries rich in biodiversity means that companies need to be aware of the Nagoya Protocol and the country-specific “Access and Benefit Sharing” laws and regulations that exist and are being enacted.  The use of indigenous ingredients in hair care, skincare and cosmetics formulations – such as baobab oil extracted from the fruits of the baobab trees found across Africa or katafray bark extract from the katafray trees of Madagascar – may be a violation of the Nagoya Protocol if Access and Benefit Sharing requirements are not met.

The Nagoya Protocol is an international treaty focused on Access and Benefit-Sharing, which was adopted in 2010 by the United Nations’ Nagoya, Japan Convention on Biological Diversity.  The Nagoya Protocol arose from the interest of national governments to conserve and promote sustainable use of their countries’ biodiversity and protect against commercial biopiracy.  The purpose of the Nagoya Protocol is to support fair and equitable sharing of benefits arising from the utilization of genetic resources and associated traditional knowledge.

Generally, the Nagoya Protocol requires that access to a participating country’s genetic resources and associated traditional knowledge be subject to the “prior informed consent” of the party providing such resources.  The Nagoya Protocol also requires the sharing of the benefits arising from the commercialization of genetic resources and associated traditional knowledge with the owners of biodiversity, including the local communities and the indigenous people, on “mutually agreed terms.”

The Nagoya Protocol itself establishes only international norms and a framework for Access and Benefit Sharing measures, and does not impose Access and Benefit Sharing laws itself.  That is left to national legislation, and requires the contracting parties to implement their own Access and Benefit Sharing measures and to designate a competent national authority on ABS.  Many countries, including Brazil, Chile, Colombia, Costa Rica and India, already have national enabling laws and regulations.

Personal care product companies in particular also should be aware that their marketing and advertising of the products as containing native ingredients or drawing on traditional knowledge could subject them to a claim of biopiracy by national governments, local communities, and even non-governmental organizations.

Although the United States is not a contracting party to the Convention on Biological Diversity or the Nagoya Protocol, companies in the United States whose products utilize genetic resources or traditional knowledge from a member state, or are sold in a member state, must comply with the access and benefit sharing requirements.  It is imperative for companies to exercise due diligence to ensure that their raw material or ingredient suppliers have obtained prior informed consent for access to genetic resources or associated traditional knowledge used in their products, and mutually agreed terms for the sharing of benefits.

As a leader in providing legal services to the personal care products industry, CK&E can assist companies in instituting internal policies and procedures to help ensure compliance with the Nagoya Protocol.  CK&E will continue to monitor and provide updates about developments in the Nagoya Protocol.  The first meeting of the Conference of the Parties to the Nagoya Protocol will be held in October 2014 in Pyeongchang, South Korea, concurrently with the Conference of the Parties to the Convention on Biological Diversity.

Full text of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization.  The countries that have ratified or acceded to the Nagoya Protocol to date are:

  • Albania
  • Belarus
  • Benin
  • Bhutan
  • Botswana
  • Burkina Faso
  • Burundi
  • Comoros
  • Côte d’Ivoire
  • Denmark
  • Egypt
  • Ethiopia
  • European Union
  • Fiji
  • Gabon
  • Gambia
  • Guatemala
  • Guinea-Bissau
  • Guyana
  • Honduras
  • Hungary
  • India
  • Indonesia
  • Jordan
  • Kenya
  • Lao People’s Democratic Republic
  • Madagascar
  • Mauritius
  • Mexico
  • Micronesia (Federated States of)
  • Mongolia
  • Mozambique
  • Myanmar
  • Namibia
  • Niger
  • Norway
  • Panama
  • Peru
  • Rwanda
  • Samoa
  • Seychelles
  • South Africa
  • Spain
  • Sudan
  • Switzerland
  • Syrian Arab Republic
  • Tajikistan
  • Uganda
  • Uruguay
  • Vanuatu
  • Vietnam

 

Print Friendly, PDF & Email
0

The Conkle Firm Attends IECSC and IBS Beauty Industry Shows in Las Vegas

Posted by:

CK&E attorney Kim Sim recently attended the International Esthetics, Cosmetics and Spa Conference (IECSC) and International Beauty Show (IBS), two of the premier trade shows for manufacturers and distributors in the personal care products industry.  The trade shows were held June 12 through 14, 2014 at the Las Vegas Convention Center in Las Vegas.

IECSC Las Vegas is the country’s largest spa and wellness conference and expo, with more than 600 exhibitors, including manufacturers, distributors, spas and wellness centers, and thousands of professionals attending from the national and international spa and wellness market.  In addition, this year’s IBS Las Vegas, a beauty show focused primarily on salon-only and professional-grade products, featured more than 350 exhibitors.  Many of CK&E’s industry clients exhibited at both IECSC Las Vegas and IBS Las Vegas to widespread interest by show attendees.  Both IECSC Las Vegas and IBS Las Vegas offer a unique opportunity for CK&E to meet and interact with clients as well as other professionals in the beauty industry, and stay on the inside track about the industry’s latest developments and trends.  Kim was pleased to be able to catch up with BonBliss Beauty founders Elissa and Jay Choi.

CK&E’s next trade show attendance will be at Cosmoprof North America, one of the world’s top trade shows for the personal care products industry.

Print Friendly, PDF & Email
0

California Attorney General Kamala Harris Promises to Scrutinize Prop 65 Settlements

Posted by:

As reported on the Conklelaw blog, the California Attorney General’s Office recently released its long-awaited 2013 report of Proposition 65 settlements.  The report reveals that private Proposition 65 bounty hunters collected nearly $17 million in civil penalties, payments in lieu of penalties and attorneys’ fees and costs from businesses during 2013.

Concurrently with the report, the Attorney General’s Office took the unusual step of releasing a letter directed to the Proposition 65 plaintiffs’ bar – a small group of attorneys and law firms who specialize in representing private enforcers.

The letter from the Attorney General’s Office letter characterizes the 2013 report as shining “a light on some of the aspects of private enforcement of Proposition 65 that result in unnecessary burdens for businesses and are cause for public concern.”

The letter expresses particular concern over Proposition 65 plaintiffs’ practice of collecting “Payments in Lieu of Penalties” (also known as PILPs).  PILPs are supposed to offset civil penalties in Proposition 65 cases, and are intended to fund activities that have some nexus to the basis for the Prop 65 enforcement action.  Proposition 65 bounty hunters have broadly interpreted such PILP-funded activities to include funding additional Proposition 65 litigation.  Unlike civil penalties, of which California’s Office of Environmental Health Hazard Assessment (OEHHA) is entitled to 75 percent, the state does not receive any portion of PILPs.  In 2013, 21% of the money collected in private settlements was paid as PILPs.

The Attorney General’s Office also criticized the enormous attorneys’ fees routinely collected by private enforcers as part of Proposition 65 settlements, and promised to “redouble” efforts to evaluate attorney’s fees awards.  In 2013, nearly 75 percent of all of the Proposition 65 settlement money, or an astonishing $12.5 million, went straight to the plaintiffs’ lawyers.  Attorney General Harris concluded, “Clearly, the high transaction costs for resolving Proposition 65 cases continue to be cause for concern.  They are the reasons we have been redoubling our efforts to evaluate attorney’s fees awards in the private party settlements submitted to us. . . .”

Attorney General Harris’ pledge to actively scrutinize Proposition 65 settlements is consistent with her “hands-on” approach to attempting to curb private enforcement efforts.  In 2011, for example, the Attorney General filed an opposition to a motion to approve settlement in Held v. Aldo, challenging an attorney’s fee request for more than $5 million by the Chanler Group – one of the most active Proposition 65 plaintiff’s firms – as unreasonable.  Let’s hope Attorney General Harris backs her pledge with more direct and effective oversight to curb abuses of Proposition 65 by private enforcers.

Conkle, Kremer & Engel attorneys are committed to guiding clients through the constantly changing landscape of Proposition 65 compliance and enforcement.

Print Friendly, PDF & Email
0

California Attorney General Reports Businesses Paid $17 Million to Settle Private Prop 65 Cases in 2013

Posted by:

And that’s the “good news” – in 2012 it was $20 million.

The California Attorney General’s Office recently released its annual report of Proposition 65 settlements.  The report confirms what most businesses are already painfully aware:  Proposition 65 continues to be a thriving business for private Proposition 65 plaintiffs and their lawyers, who make millions of dollars in the name of the “public interest.”

While private plaintiffs did not reap as much in 2013 as they did in 2012 ($20 million), they did manage to collect $17 million.  That represents the third largest haul for bounty hunters since 2000, when the Attorney General’s Office began collecting the data and publishing annual reports.net

The summary reveals that in 2013 alone, private Proposition 65 plaintiffs acting in the “public interest” and their lawyers entered into a whopping 350 private settlements or consent judgments with businesses alleged to be in violation of Proposition 65, and collected $16,812,396.  In contrast, the Attorney General and local District Attorney each filed a single action.

Proposition 65 requires the State of California to publish a list of chemicals known to cause cancer, birth defects or other reproductive harm.  Businesses are required to warn consumers before exposing them to any one of more than 800 listed chemicals, by either labeling or posting a notice.  If a business does not comply, it can be liable for substantial civil penalties of up to $2,500 per day.

Proposition 65 has become a disturbingly lucrative operation for private enforcers, frequently called “bounty hunters,” who serve dozens if not hundreds of Notices of Violation on unsuspecting businesses.  These bounty hunters threaten to sue unless they are paid off in private settlements.  If a private settlement cannot be reached, they proceed with a lawsuit and try to force a settlement to avoid the cost of defense.

Proposition 65 allows private enforcers to keep 25 percent of all civil penalties collected, with the remaining 75 percent going to the California Office of Environmental Health Hazard Assessment (OEHHA).  In addition, private enforcers pocket 100% of so-called payments in lieu of penalties, or PILPs.  Whereas OEHHA would receive 75% of monies designated as civil penalties, OEHHA does not receive any portion of monies designated as PILPs.  Finally and most significantly, private enforcers’ lawyers are entitled to reasonable attorneys’ fees and costs under the State’s private attorney general doctrine.

The 2013 report shows that only one-tenth of all monies collected by private enforcers went to the State of California.  The rest of the money went to the bounty hunters and their lawyers:

  • $12,426,052, or 74%, went directly to the private enforcers’ lawyers as attorneys’ fees and costs
  • $596,977.25, or 3.6%, went directly to private-enforcer plaintiffs
  • $1,998,435, or 12%, went indirectly to private-enforcer plaintiffs as a payment in lieu of penalty
  • $1,790,931.75, or 11%, went to OEHHA.

The report also shows continued aggressive activity by a handful of Proposition 65 private enforcers.  At the top of the list are:

  • Center for Environmental Health (represented by Lexington Law Group) with 62 settlements or consent judgments totaling more than $3.3 million
  • Russell Brimer (represented by Chanler Group) with 60 settlements or consent judgments totaling more than $2.4 million
  • Peter Englander (represented by Chanler Group) with 46 settlements or consent judgments totaling more than $1.6 million
  • John Moore (represented by Chanler Group) with 41 settlements or consent judgments totaling more than $2 million
  • Environmental Research Center (represented by various law firms including Law Office of Karen A. Evans and Michael Freund & Associates) with 34 settlements or consent judgments totaling more than $2.8 million
  • Consumer Advocacy Group (represented by Yeroushalmi & Associates) with 25 settlements or consent judgments totaling more than $1.3 million

The Prop 65 outlook for businesses in 2014 does not look much better.  In particular, the June 2013 listing of cocamide DEA, a common ingredient in beauty and personal care products, such as liquid soaps and shampoos, has spawned dozens of lawsuits and hundreds of businesses have been named as defendants.  Numerous settlements have already been approved by the Alameda Superior Court this year, leading to speculation that the total settlements in 2014 will likely exceed the total settlements in 2013.

Conkle, Kremer & Engel routinely represents businesses against Proposition 65 claims and lawsuits brought by private enforcers, as well as counsels businesses on compliance with Proposition 65 in order to avoid becoming a future target of private enforcers.

 

Print Friendly, PDF & Email
0

New York Assembly Passes First Ban on Microbeads; California and Other States Expected to Follow

Posted by:

Legislators in several states, including California, New York, Illinois, Minnesota, and Ohio, have recently introduced legislation to ban the use of “microplastics” in personal care products.  Such “microplastics” are tiny plastic microbeads, defined in the legislation as 5 millimeters or less in all dimensions.  They are typically found in personal care products such as hand and body soap, exfoliates, shampoos, toothpastes and face and body scrubs. They are included in products to improve performance, but have been the subject of intense scrutiny because of concern about their environmental impact, including contribution to water pollution. The microbeads are small enough to wash down the drain, but are not being caught by sewage treatment facilities.

On May 5, 2014, the New York State Assembly unanimously passed New York Assembly Bill A08744, the “Microbead-Free Waters Act,” which would prohibit the sale of personal cosmetic products that contain the tiny plastic particles. The bill is now before the New York State Senate; if passed into law, it would take effect January 1, 2016.

California Assembly Bill 1699, introduced February 13, 2014, would similarly prohibit the sale or offer for promotional purposes of any personal care products containing microplastics on or after January 1, 2018.   The so-called “Microplastic Nuisance Prevention Law” would impose civil penalties on violators of up to $2,500 per day for each violation in actions brought by the Attorney General or local officials, as well as permit injunctions to be imposed on violators.  The bill provides an exemption for products that contain less than 1 part per million (ppm) by weight of microplastic.  Like Proposition 65, businesses employing fewer than 10 employees are exempt from compliance.

Conkle, Kremer & Engel monitors the latest developments on legal and regulatory issues affecting the personal care products industry to provide expert guidance to its industry clients.

Print Friendly, PDF & Email
0
Page 9 of 12 «...7891011...»