Cosmetics & Personal Care Products

Chair’s Welcome Remarks

Sharon Blinkoff
Senior Counsel
Locke Lord LLP
Secretary and General Counsel, and Member of the Board of Directors
Independent Beauty Association

ROUNDTABLE DELIBERATIONS & LIVE POLLING

The United States of Beauty: An Analysis of Proposed Federal Legislation and Regulation Impacting the Cosmetics Industry

Robert C. Harmala
Partner
Jenner & Block LLP

Sharon Blinkoff
Senior Counsel
Locke Lord LLP
Secretary and General Counsel, and Member of the Board of Directors
Independent Beauty Association

Participate in live polling to discuss which legislation and regulations will likely move forward under the new Administration.

• Analyzing the latest developments surrounding The Safe Cosmetics and Personal Care Products Act of 2019
• Examining the impact of how this pending legislation would amend provisions of the Federal Food, Drug and Cosmetic Act including ingredient safety and animal testing
• Comprehending how the introduction of the Humane Cosmetics Act would promote the advancement of animal welfare while still balancing the need for innovation in cosmetics and personal care products
• Identifying challenges with FDA’s regulations on color additives

Focus on Monograph Reform Under the CARES Act: Understanding What this Means for the Cosmetics and Personal Care Industries

Jessica P. O’Connell
Partner
Covington & Burling LLP (Washington, DC)

In March 2020, the OTC drug approval process under the monograph system was finally revised — and rather strangely under the Coronavirus Aid, Relief, and Economic Security Act or CARES Act. We will explore how this came about and why OTC monograph reform impacts the Cosmetics and Personal Care industries.

FDA Keynote on Priorities for 2021

Linda M. Katz, M.D., M.P.H.
Director, Office of Cosmetics and Colors
United States Food and Drug Administration

Break & Speaker’s Lounge Open Forum

Join the early morning speakers for an extended Q&A session. Delegates will have the opportunity to turn on their camera as this session will not be recorded.

Beauty Within the States: Complying with State Laws and Adhering to Safety Requirements for Cosmetics and Personal Care Products

Daniel J. Kolhoff
Director of Regulatory & Legal Affairs
John Paul Mitchell Systems

Sharon Blinkoff
Senior Counsel
Locke Lord LLP
Secretary and General Counsel, and Member of the Board of Directors
Independent Beauty Association

Part I: Wading through the Patchwork of State Laws on Cannabis, Sunscreen, and Cosmetic Safety

• Assessing the overall state of cosmetics safety legislations in various jurisdictions
• Comparing and contrasting different state sunscreen laws and how this may impact the commercial viability of your product
• Understanding the limitations and risks with introducing cosmetics products containing
• CBD hemp oil in various states with federal prohibitions despite the passage of the Farm Bill

Part II: Special Spotlight on California Specific Reforms

Last year, California introduced legislation that may have far reaching implications as well as out of-state reach for cosmetics.

Other states may soon follow California’s lead. As a result, companies need to brace themselves for potential restrictions as proposed reforms may become a likely reality. Points of discussion include:

• Assessing the impact of the California Consumer Privacy Act (CCPA) in the cosmetics space and how this will affect other states passing similar legislation
• Comparing and contrasting the CCPA with GDPR: identifying similarities and differences
• Interpreting the following bills from California regarding ingredient safety:
• AB647 Bill on requirements to provide safety data sheets (SDS) and post these on a public website
• SB-574 Cosmetic Fragrance and Flavor Ingredient Right to Know Act which requires disclosure of ingredients in fragrances and list of flavors that may pose a health hazard

An International Perspective on the Use of CBD Hemp Oil in the Cosmetics and Personal Care Space: Imports, Exports, and Domestic Concerns

Shelly Garg
Partner
Amin Talati Wasserman, LLP

D. Kyle Sampson
Partner, FDA and Life Sciences
King & Spalding LLP

• Assessing the FDA’s current stance on CBD-hemp oil: new ingredient or something different?
• Realizing the difficulties and challenges with introducing cosmetics with CBD hemp oil into foreign countries that have strict regulations for the regulation of such products
• Recognizing challenges with the import of CBD cosmetics from foreign countries
• Devising ways to overcome this challenge by establishing a sound plan for market entry

1:1 Networking

Lunch Break

Assessing the Risks of Socially Promoting Beauty

Thomas Cohn
General Counsel & Corporate Secretary
The Avon Company

Candace Sady
Chief Marketing Counsel – North America
Colgate-Palmolive Company

Through the use of hypotheticals, we will explore challenges, legal dilemmas, and controversies associated with managing contracted influencer and non-contract influencers

• Examining the role and reach of influencers in the promotion of beauty and personal care products
• Understanding the heightened risk with contracting with an influencer, blogger, or celebrity to promote your product
• Outlining the “do’s and don’ts” of what an influencer can say about your product without making disease claims
• Devising effective and detailed legal contracts with the influencer to limit liability
• Enforcing guidelines with the influencer to ensure effective marketing and promotion of the product
• Ensuring ways to avoid pitfalls with fake employee reviews following the Sunday Riley case
• Adhering to FTC guidelines on influence social media marketing and on endorsements/testimonials

TOWN HALL Q&A WITH THE FTC AND NAD

The Make-Up of Claims Substantiation: Establishing Proofs and Avoiding Misrepresentation

Annie M. Ugurlayan
Assistant Director National Advertising Division
BBB National Programs, Inc.

Richard Cleland
Assistant Director – Division of Advertising Practices
United States Federal Trade Commission

This session is designed as an interactive town hall where attendees will be able to direct questions to the panel – including FTC and NAD representatives — regarding recent activity with popular products in the cosmetics space as well as labeling challenges. In addition, the speakers will offer forecasts on the next wave of claims enforcement and offer practical insights on how to avoid such activity.

• Analyzing the trends and developments of the past year for claims on popular products involving:
• Wrinkle reduction, tattoo ink usage, eyelash growth products
• Natural, clean beauty, “free from”, and sustainability
• Devising effective ways where R&D, Legal, and Marketing teams can work seamlessly together to ensure all claims can withstand scrutiny
• Understanding how you can use independent third-party testing to provide scientific support of your product
• Assessing the impact of having no real industry standard on testing requirements
• Differentiating the various types of claims you can make: numerical, comparative, clinical, superiority, and more and how this affects testing
• Assessing recent NAD and FTC claims substantiation activity
• Examining recent settlement activity with MLM companies

Break & Speaker’s Lounge Open Forum

Join the morning and afternoon speakers for an extended Q&A session. Delegates will have the opportunity to turn on their camera as this session will not be recorded.

Industry Insights: Balancing Consumer Demand for Clean Beauty, Sustainability, and Natural Products Against Potential Liabilities

Armia Guirguis
Product Safety & Regulatory Affairs Director
Henkel Beauty Care

Kimberly Smith Esq.
Founder
Marjani Beauty LLC

Clean Beauty

• Understanding how retailers are addressing clean beauty and sustainability by requiring companies to certify their products with their own standards or the use of third-party verification seals
• Assessing the risks and liabilities with potential litigation due to a lack of uniform standard or FDA regulation on this matter
• Identifying what “clean beauty” means to the industry vs. the consumer
• Strengthening efforts to improve corporate social responsibility in the increasing demand for environmentally friendly products
• Responding to consumer demand for cruelty free products

Natural

• Addressing the ongoing challenges with lack of definition of “natural” from the FDA
• Evaluating FDA warning letters on “natural” products
• Assessing what consumers demand and reasonably expect from natural cosmetics products
• Educating consumers on how preservatives are needed to protect from bacteria and mold
• Ensuring your claim is labeled properly and you can substantiate your product with the definition of “natural” you provided to the consumer
• Defining your risk points when labeling your product as natural
• Analyzing recent case law on “natural” products: how the courts are asking the FDA to provide a definition

Class Action and Prop 65 Litigation Outlook for Cosmetics: Forecasting the Next Wave of Activity

Trenton H. Norris
Partner
Arnold & Porter Kaye Scholer LLP

Risa M. Drexler, Esq.
Associate General Counsel - Litigation
Unilever USA

Lynn R. Fiorentino
Partner
Arent Fox LLP

Class Actions

• Analyzing recent class action litigation activity involving performance of products, false advertising, and mislabeling
• Interpreting findings relevant to recent cases regarding aloe vera
• Assessing ways to defeat class action litigation at the certification phase
• Examining how California specific litigation can be used as a benchmark for potential litigation in other states

Prop 65

• Identifying the latest wave of plaintiff’s claims made under Prop 65
• Assessing the impact of retailers who require manufacturers to certify products are compliant with Prop 65 warnings
• Knowledge of source of materials and testing ingredients
• Understanding the safe harbor provisions under Prop 65 and whether your product is exempt
• Devising defense strategies to respond to warning letters from bounty hunters who search for products containing ingredients in violation of Prop 65
• Examining the impact of proposed legislation in New York called the “Right to Know Act”: similarities and differences with Prop 65

Case Studies: IP Protections and Anti-Counterfeiting Assurances for Cosmetics

David Joyal
Vice President Legal, Global Supply and Patents
COTY

Scott Miller
Co-Managing Partner
MBM Intellectual Property Law

• Analyzing recent case law developments affecting trademark infringement
• Managing trademark squatters especially with counterfeit products in Asia
• Outlining best practices for building your trademark portfolio

Patents

• Developing patent strategies to address the latest trends in the cosmetics space
• Assessing challenges with patents as the demand grows in the global market

Counterfeit Products

• Developing internal controls to protect your brand and reduce counterfeit products
• Handling the public relations in the aftermath of counterfeit products hitting retailers and becoming viral on social media

Live Q&A

International Affairs Think Tank: Navigating Tariffs and Treaties for Successful Cosmetic Product Entry Throughout the Globe

Laura Siegel Rabinowitz
Shareholder
Greenberg Traurig, LLP

Cosmetics comprise a multi-billion-dollar international industry spanning the globe. Navigating the international market and the many laws and regulations which govern it is difficult. Trade wars and tariffs under the Trump Administration only added to this complexity. All eyes are now on the Biden Administration in anticipation of its trade policies. In this session, our speakers will provide a detailed overview and in-depth analysis for the successful global entry of your product.

Points of discussion will include:

• Assessing the status of tariffs in the U.S. under a Biden Administration and throughout the globe that may affect supply chain and pricing
• Understanding the impact of the tariffs America imposed on European products under Trump and whether this will continue under Biden – and what this means for the cosmetics space
• Analyzing the probability of continuing trade wars and tariffs between the US and China under a Biden Administration and how this might affect cosmetics products
• Exploring the status of the renegotiated NAFTA (renamed) USMCA under a Biden Administration– and how this impacts the cosmetics space
• Assessing the impact on labor, intellectual property, and investments
• Forecasting the Biden Administration’s view on the prior Administration’s policies of leveling the playing field with other countries
• Intellectual property protections
• Restrictions on U.S. investment in other countries

Closing Comments