The Personal Care Product Industry as “Essential Activity” in the Coronavirus Pandemic

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The Personal Care Product Industry as “Essential Activity” in the Coronavirus Pandemic

March 20, 2020 Update to Post:

Very Fast-Moving Developments on the Subject of Essential Business Activity

Since Conkle, Kremer & Engel’s first publication of this blog post on March 18, 2020, there have already been significant additional developments, including more government orders. In the early evening of March 19, Los Angeles County and the State of California each issued “stay-at-home” orders that have noteworthy differences from the March 16 San Francisco Bay Area orders. All of these orders appear to be operating in parallel effect, so different requirements may apply depending on your business locations.

With respect to the Los Angeles County order, both establishments selling “personal care products” and “businesses that supply other essential businesses [like grocery stores and pharmacies]” are categorized as “Essential Business” and exempt from the closure effects in Los Angeles County. This “personal care products” exemption is like the Bay Area orders. The Los Angeles County order additionally includes establishments providing “personal grooming services,” like salons and barber shops, emphasizing the importance of personal hygiene to combat the Coronavirus and indicating that, top to bottom, the supply chain of personal care products should continue to operate in Los Angeles County. At least, for now.

The State of California’s order, which applies statewide, appears to be much broader in general application than many county orders, but is quite vague as to what activities are “Essential” and therefore permitted. Instead of listing the specific exempt businesses like the county orders, the California state order refers to the federal Cybersecurity and Infrastructure Security Agency’s (“CISA”) list of 16 “Critical Infrastructure Sectors,” which are somewhat malleable business categories that may cause confusion as to which businesses might be exempt. On March 19, CISA released a guidance memorandum that appears to contemplate the manufacture of personal hygiene and cleaning products as being “critical,” but again is not nearly as specific to personal care products as are the various California county orders. Even though it is possible that the California state order supersedes county, city or other local orders, the state order is somewhat unclear as to what business activity is prohibited or remains permitted. For that reason in particular we have, for now, continued to look to the various more specific county orders to provide advice to clients.

CK&E’s personal care product industry sources inform us that there will likely be additional official guidance on the California state order sometime next week, and it is anticipated that such guidance should include specific permission for personal care products manufacturers and sellers to continue at least some scope of business activity. Underlying the various orders there continues to be a strong policy argument to keep personal care products businesses running – they make products that can help reduce the risk of spreading and being infected by Coronavirus.

CK&E will continue to monitor events as they develop and provide up-to-date information to its clients in personal care and other industries in order to assist in navigating through these uncertain and fast-changing circumstances.

Original March 18, 2020 Post:

With states and counties temporarily shuttering certain categories of businesses to combat the Coronavirus pandemic, many manufacturers, distributors, and retailers of personal care products and cosmetics may wonder whether their businesses fall under such executive orders and are required to close. If the March 16, 2020 “stay-at-home” orders issued by six of California’s San Francisco Bay Area counties are any indication, it appears that at least some categories of personal care products, and the businesses that deal in them, may be considered “Essential Activities,” allowing such businesses to remain in operation.

Those Bay Area executive orders (used as a model by Orange County, California for a similar March 17 order, subsequently amended and narrowed March 18) have two pertinent “Essential Activities” sections. The first includes “personal care products” and “products necessary to maintain the sanitation of residences,” and the second includes “businesses that supply other essential businesses [like grocery stores and pharmacies] with the supplies necessary to operate.” These two categories certainly should include personal cleaning and protective items like shampoos, soaps, washes, lotions, balms, and creams, as these products are essential elements of the personal hygiene deemed necessary to combat the Coronavirus. The California Health and Safety Code has long required workers to maintain standards of personal cleanliness with respect to hair, hands, and skin, and in the wake of government directives to wash hands frequently, news outlets like the Washington Post and the Boston Globe have recently quoted medical experts for the importance of moisturizing skin to keep a strong barrier against disease.

With respect to “elective” or “non-hygienic” personal case products such as hair treatments, coloring products, makeup, and nail polish, while the Bay Area orders do refer to the continued sale of all “personal care products” without limitation, it is unclear whether manufacturers or sellers of non-hygienic personal care products will be considered “Essential Activities” in practice. Many hair and nail salons have been closed, and governments have already begun issuing warnings and citations to non-essential companies who have remained open in the face of lockdown orders.

For comparison, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) issued a national emergency declaration to provide “hours-of-service regulatory relief to commercial vehicle drivers transporting emergency relief in response to the nationwide coronavirus (COVID-19) outbreak.”  Among the transported products that are within emergency FMCSA regulatory exemptions are: “Supplies and equipment, including masks, gloves, hand sanitizer, soap and disinfectants, necessary for healthcare worker, patient and community safety, sanitation, and prevention of COVID-19 spread in communities.” US DOT’s FMCSA reportedly considers its regulatory exemptions applicable to mixed shipments of general consumer goods and some of these types of products that are important to healthcare worker, patient and community safety.

Based on these developments, and to the extent possible, businesses dealing in a variety of personal care or cosmetics products may want to consider pivoting to a larger share of production of hygiene-centric products to remain “essential” until issuance of further guidance.

Conkle, Kremer & Engel has decades of advising clients in the personal care, cosmetics, and beauty industry, including with respect to a wide range of regulatory and employment-related matters. CK&E is working with the Personal Care Products Council and closely monitoring the fast-developing Coronavirus legal landscape in order to assist clients with their immediate business, workplace, and workforce needs in this uncertain time.

18
MAR
0

Beauty Industry, California Trade Regulations, Food, Craft Beer and Nutrition, Personal Care Products, Regulatory Compliance, Sales

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

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The Conkle Firm Presents at Personal Care Product Council’s Emerging Issues Conference in Marina del Rey
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
0

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

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Conkle Firm Attorneys and PCPC Lobby California Legislature about SB 574 and AB 495

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Conkle Firm Attorneys and PCPC Lobby California Legislature about SB 574 and AB 495

On April 3, 2019, Conkle, Kremer & Engel attorneys John Conkle and Raef Cogan joined the Personal Care Products Council (“PCPC”) in Sacramento, California to lobby members and staff of the California Legislature on pending legislation important to members of the personal care products industry, including Senate Bill 574 and Assembly Bill 495.

CK&E attorneys, PCPC staff and participating industry representatives visited legislative offices to advocate for positions favored by personal care products industry members. Over the course of more than 15 meetings with legislators and their aides, the group focused its advocacy on two pending bills that, if enacted, would have significant consequences for the U.S. cosmetics industry as a whole. Conkle, Kremer & Engel has previously written about Senate Bill No. 574 (“SB 574”) introduced by Senator Connie Leyva and Assembly Bill No. 495 (“AB 495”) introduced by Assembly Members Al Muratsuchi and Buffy Wicks. These are important bills that if enacted would have significant consequences for the U.S. cosmetics industry as a whole.

SB 574, also known as the “Toxic Fragrance Chemicals Right to Know Act of 2019,” would require cosmetic manufacturers to disclose fragrance of flavor ingredients that appear on any one of 27 “designated lists.” CK&E attorneys explained during the meetings that a viable version of this bill may be presented in the future, but that as written SB 574 threatens cosmetic companies’ confidential business information, results in duplicative regulation and relies on faulty, unscientific “lists” to determine what information manufacturers must disclose.

AB 495, is entitled the “Toxic Free Cosmetics Act,” and would dramatically increase the number of cosmetics listed as “adulterated,” without justification. CK&E attorneys explained that under AB 495 as proposed, any cosmetic that contained even trace amounts of identified ingredients would be labeled “adulterated” and would be banned outright. Some ingredients sound scary, like lead, but are in fact naturally occurring and cannot be completely eliminated from cosmetic (or many other) products. Others are preservatives that have been deemed completely safe for use in cosmetics by the FDA and other regulatory bodies.

Both SB 574 and AB 495 are coming up for committee vote soon. Conkle, Kremer & Engel will stay apprised of the results and will provide updates on this legislation that is important to the cosmetics industry.

PCPC California Lobby Day also featured presentations from Allen Hirsch, Chief Director of the California Office of Environmental Health Hazard Assessment (“OEHHA”), Karl Palmer from the Department of Toxic Substances Control (“DTSC”), Joseph Calavita from the Air Resources Board, and Senator Bill Quirk, Chair of the Environmental Safety and Toxic Materials Committee. The regulators spoke about important upcoming actions by their agencies. Senator Quick focused on the importance of protecting our environment from toxins, primarily greenhouse gasses. Each of these presenters stressed a need for more information sharing between the industry and the respective regulatory and legislative bodies.

7
APR
0

Advertising and Labeling, Beauty Industry, California Trade Regulations, Manufacturing, Personal Care Products, Safe Cosmetics Act

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New Law Requires Professional Cosmetics Labels to List Ingredients

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New Law Requires Professional Cosmetics Labels to List Ingredients

Professional cosmetics sold in California must have full ingredient labeling in the same manner as consumer cosmetics, if the products are manufactured after July 1, 2020.  The California legislature unanimously approved AB 2775, introduced by Assembly Member Ash Kalra.  The bill was signed into law by Governor Brown on September 14, 2018 and enacted as new Section 110371 to the Health and Safety Code.

There are over 312,000 professional cosmetologists who are licensed to provide nail and hair services, most often in salons.  The legislature found that “[i]nformation on the ingredients in professional salon products is essential to ensuring that workers and owners can make safer product choices and take steps to protect themselves and their customers against harmful exposures.”

The new law will establish that professional cosmetics must have a label affixed on the container that satisfies all of the labeling requirements for any other cosmetic pursuant to the federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301, et seq.), and the federal Fair Packaging and Labeling Act (15 U.S.C. Sec. 1451, et seq.).  In other words, professional cosmetics must have the same ingredient labeling as consumer cosmetics.

The law already defines the term “cosmetic” as “any article, or its components, intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to, the human body, or any part of the human body, for cleansing, beautifying, promoting attractiveness, or altering the appearance.”  (Health and Safety Code Section 109900)  The newly-enacted law introduces a new definition of “professional cosmetic,” meaning a cosmetic “that is intended or marketed to be used only by a professional on account of a specific ingredient, increased concentration of an ingredient, or other quality that requires safe handling, or is otherwise used by a professional.”  In turn, “professional” is defined for this purpose as “a person that has been granted a license by the State Board of Barbering and Cosmetology to practice in the field of cosmetology, nail care, barbering, or esthetics.”

There is arguably some ambiguity in that the new statute could be read to define a “professional cosmetic” in a circular manner as including a cosmetic that “is … used by a professional.”  Such an ambiguity is not likely a concern in this particular Act.  This is because the effect of this new law is just to require the same type of ingredient labeling for both consumer and professional cosmetics, so it should not matter whether a licensed professional uses a resalable consumer or professional cosmetic for purposes of compliance with this law.  However, if in the future the same definition of “professional” is incorporated into other enactments (much like “the definition of cosmetics” was incorporated here from a different statute), the circular definition may become more problematic.

The new law was enacted with widespread industry support, including the Personal Care Products Council, the Professional Beauty Association, California Chamber of Commerce, and Unilever.  Many manufacturers have already listed product ingredients on their professional cosmetic lines in a manner consistent with that required for retail cosmetics, and so may already be in compliance.  But manufacturers should review their professional cosmetic product labeling well ahead of the July 1, 2020 effective date in order to determine whether they comply.  Further, manufacturers should be aware that there is no specific “professional cosmetic” exception to other warning label requirements, such as Proposition 65, which requires warnings if use of a product on a consumer in California would result in significant exposure to identified chemicals that are known to cause cancer, birth defects or other reproductive harm.

Manufacturers are well-advised to seek qualified counsel to review their circumstances before committing to potentially costly label changes, to be sure they comply with all legal requirements.  Conkle, Kremer & Engel attorneys stay up to date on important regulatory developments affecting their clients in the professional salon products industry, and are ready to help clients apply navigate the changing regulatory landscape in California and elsewhere.

19
SEP
0

Advertising and Labeling, Beauty Industry, California Trade Regulations, Manufacturing, Personal Care Products, Proposition 65

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

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

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
0

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

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The Conkle Firm Presentation at 2018 PCPC Legal & Regulatory Conference

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The Conkle Firm Presentation at 2018 PCPC Legal & Regulatory Conference

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
0

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

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

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

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
0

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

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CK&E Attorneys Lobby California Legislature with PCPC

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CK&E Attorneys Lobby California Legislature with PCPC

On March 20, 2018 Conkle, Kremer & Engel attorneys Eric S. Engel and Aleen Tomassian helped the Personal Care Products Council fulfill part of its mission by organizing and executing an effective lobbying day to advance the legislative interests of the industry.  Led by PCPC Senior Vice President Government Affairs Mike Thompson and PCPC Director of Government Affairs Karin Ross, a group of personal care product industry members, lobbyists and advisors heard presentations by pivotal regulatory agencies and then met with key legislators and their staffs to address issues of importance to the industry.

PCPC Chief Scientist Alex Kowcz seminar to Calif Legislative Staff

The PCPC held a luncheon at which it presented its first Legislator of the Year Awards to congresspersons who have been the most effective in advancing the important interests of both business and consumers in relation to personal care products.  Legislative staff also received an educational presentation from PCPC’s new Chief Scientist, Alex Kowcz, to help bring to Legislators the most current scientific information about issues affecting personal care products.  After a long day of meetings, participants unwound and connected at an informal reception for legislators, the governor’s office and administration officials at Ella, a popular restaurant near the State Capitol.

 

Eric S. Engel and Aleen Tomassian at PCPC Calif Lobby Day Reception

Some of the highlights of the 2018 PCPC California Lobby Day included a presentation by Meredith Williams, Deputy Director of Department of Toxic Substances Control (DTSC), and Rick Brausch, Chief of DTSC’s Policy and Program Support Division, Hazardous Waste Management.  The mission of the DTSC is the Safer Consumer Products (SCP) program, directed toward advancing the design, development and use of products that are chemically safer for people and the environment.  The aim is to reduce toxic chemicals in consumer products and create new business opportunities in green chemistry.

Dr. Williams advised the PCPC group that DTSC’s SCP program intends to focus over the next three years on nail salon products, particularly to assure a safe working environment for salon employees as well as customers, such as by assuring adequate ventilation and safety equipment.  Dr. Williams also noted that Volatile Organic Compounds (VOCs) are not only within the ambit of California’s Air Resources Board (ARB) as to their effect on the environment, but they are also within the scope of DTSC’s authority when regulation of VOCs can meaningfully enhance protection of human health.

On February 8, 2018, DTSC released a draft 2018-2020 Priority Product Work Plan for public review, in which “Beauty, Personal Care and Hygiene Products” are identified as targets for possible regulation.  Of some concern to PCPC, the Priority Product Work Plan includes DTSC’s interest in broad classifications of chemicals without defining exactly which chemicals in what formulations are of concern.  For example, DTSC’s Priority Product Work Plan identifies oxybenzone, BPA, DEA, formaldehyde, phthalates, parabens, triclosan, titanium dioxide, tolulene and VOCs as classes chemicals being considered for possible regulation, but there are a great many specific chemicals, formulations and uses within such classes, and not all of them are likely to be of concern to DTSC.  PCPC expressed its concern that broad classifications can cause confusion among manufacturers and consumers, and unnecessarily inhibit product development and sales.  For example, oxybenzone (aka Benophenone-3) is one of just 16 chemicals approved by the US Food and Drug Administration (FDA) as safe and effective for use as an ultraviolet (UV) filter to achieve broad-spectrum sun protection.  The health benefits of effective UV sunscreens are well documented, but the broad suggestion of “endocrine toxicity” or “dermatoxicity” in DTSC’s identification of oxybenzone is on shaky scientific footing.  Dr. Williams noted that the 2018-2020 Priority Product Work Plan is only in draft form, and that DTSC recognizes the broad nature of the chemical groups identified and is working on identifying specific chemicals of concern rather than entire classes of chemicals.

DTSC’s Richard Brausch spoke of the hazardous waste logistics issues facing the personal care product industry, affecting the entire supply chain from manufacturers to retailers.  The issue often occurs when products are returned from retailers, and questions arise as to whether they may be regarded as hazardous waste if they are no longer considered fit for regular sale, such as when new product labeling is introduced.  Issues can arise as to who has responsibility for proper transportation and disposal of the products, whether by sale in secondary markets, repair or refurbishment, donation to charities or recycling.  It is notable here that improper transportation and disposal has led some local authorities to sue retailers and wholesalers for failing to use hazardous waste transporters.  That in turn has caused retailers to impose anticipatory disposal charges on manufacturers and wholesalers for a wide range of products.  PCPC therefore supports Assembly Member Bill Quirk’s introduction of new legislation, AB 2660, which places the onus on the disposal company to determine the correct method of transportation, as that is not within the expertise expected of retailers.

The overriding hazardous waste concern is that California uses an “aquatic toxicity” (aka “fish kill”) test that is grossly out of alignment with federal law, and which results in most cosmetic products being characterized as hazardous under California law.  The “fish kill” test is exactly like it sounds – it tests only whether quantities of the subject product added to a water tank will kill fathead minnows.  The test is not regarded as especially accurate, notably because high viscosity products that are otherwise harmless can kill the fish by clogging their gills.  Further, the test presents a significant problem for the personal care products industry, which has taken a strong stand against animal testing, so manufacturers generally do not conduct this “fish kill” test on finished products.  PCPC therefore advocates a more modern approach to accomplish the same goal, by use of a more recently developed fish embryo test (FET), in which live fish are not killed.

An interesting side note is that SB 1249 was introduced by Senator Cathleen Galgiani to prohibit importation or retail sale of any cosmetic that was developed or manufactured using animal testing after January 1, 2020.  While PCPC takes a strong stand against animal testing, it could not support the bill as written because it included no exception for products marketed in countries (notably China) which require that products be subject to animal testing.  Rather, the PCPC has been working to obtain an amendment of the proposed legislation to make it conform to that of the European Union, which has strong anti-animal testing regulations but allows for accommodations to make products acceptable for sale in China.

Dr. Michael Benjamin, Air Resources Board Chief of Air Quality Planning and Science spoke about the substantial product data that ARB had collected from product manufacturers selling in California, through extensive annual surveys conducted over the past three years.  From that data, ARB is working to identify trends in emissions of VOCs.  Of particular interest is a February 15, 2018 publication in the academic journal Science of a study of VOC emissions from consumer products.  The Science publication (Volatile Chemical Products Emerging as Largest Petrochemical Source of Urban Organic Emissions, by Brian C. McDonald, Joost A. de Gouw, Jessica B. Gilman and others), Science Vol. 35, Issue 6377, pp. 760-764 (Feb. 16, 2018)) caught popular attention and some popular press because it found that vehicle emissions had become so much cleaner over the past decades that they were now responsible for less than half of VOC emissions.  Overall, the total volume of VOCs had diminished greatly.  Further, while the Science article authors made many assumptions on which they based their assessment of VOC contributions of consumer products, Mr. Benjamin pointed out that ARB has the actual data from its industry surveys to determine whether the author’s assumptions and conclusions are well founded.  ARB therefore intends to do its own assessment of the points made in the Science article to determine what further action is appropriate.

PCPC’s first Legislator of the Year Awards were presented to Senator Ed Hernandez, Assembly Member Bill Quirk and Senator Galgiani.  In his comments to PCPC members, Senator Hernandez emphasized, “We want business to stay here in California, we want businesses to be successful.  There’s a lot of people here that purchase your products.”   Assemblyman Quirk addressed the need for common sense limitations on legislation such as Proposition 65, remarking that “[Someone] sent me a package of Coors beer with a Prop 65 warning on it.  We now have cases in court where people want Prop 65 warnings on coffee. * * * One study after another shows it’s not a health risk. * * * We’ve got to do something about this.  I’m definitely going to be working as time goes on in the legislature so that we don’t end up with things that are harmless being labeled.”  Finally, Senator Galgiani observed that good legislative policy is not a zero sum game:  “It’s not about having a proposal that’s just good for the environment or just good for business but we can meet in the middle and have regulations and policies that work for both sides and help everybody involved.  It’s just harder to get there – it takes more work, it takes more time and it takes patience, and all of you [at PCPC] have done a great job.”

 

 

 

 

 

 

 

 

 

 

See the Beauty Industry Report article on the PCPC California Lobby Day here.

 

9
APR
0

California Air Resources Board, California Trade Regulations, Green Chemistry Initiative, Proposition 65, Safer Consumer Products Regulations

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The Conkle Firm Advocates for Beauty Industry at State Capitol

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The Conkle Firm Advocates for Beauty Industry at State Capitol

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

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

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

John Conkle with State Senator Ed Hernandez

John Conkle with Assemblyman Heath Flora

25
MAY
0

Beauty Industry, California Trade Regulations, Personal Care Products

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The Conkle Firm Featured Panel of 2017 PCPC Legal & Regulatory Conference

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The Conkle Firm Featured Panel of 2017 PCPC Legal & Regulatory Conference

Conkle, Kremer & Engel attorney H. Kim Sim was on the featured panel of this year’s Legal & Regulatory Conference sponsored by the Personal Care Product Council.  The featured panel, called “California: The Wild, Wild West,” explored the changes and challenges of the new business landscape in California, which boasts an economy that would place it sixth among the world’s nations.  The panel discussion was held on May 10, 2017 at Hilton La Jolla Torrey Pines in San Diego, California.   John Conkle, the CK&E attorney originally scheduled to speak on this panel, was unable to appear due to a federal court trial conflict.

 

26
MAR
0

Advertising and Labeling, Beauty Industry, Brand Protection, Personal Care Products, Proposition 65, Regulatory Compliance, Unfair Competition

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