Category: Industry News

The industry is ever changing here are some various topics in the Industry! Good and Bad

How To Wrestle With Non-Compete Contracts in the Beauty/Cosmetic Industry

~ Joseph Kellner

The Real Hair Truth Documentary Blog!

 

You’d expect a fat non-compete clause in a top-tier investment banker’s employment contract. Yet more companies of all stripes are foisting non-compete contracts on lower-level lieutenants–and even line workers.

Some employers also use non-disclosure or confidentiality agreements. A non-disclosure agreement helps an organization safeguard its trade secrets and other proprietary information. Under the agreement, employees are prohibited from disclosing this information. Confidentiality agreements are similar, except that the agreement requires that one or both parties must keep information confidential.

“Even though hair stylists aren’t six-figure earners, they are frequently being asked to sign [non-competes],” says David Conforto , an attorney at Conforto Law Group in Boston. Conforto recently won an injunction for a stylist client so she could continue to work; the judge deemed her non-compete contract un-enforceable because of the high demand for qualified stylists.

Employers wield non-competes to stanch turnover and keep a firm grip on proprietary client lists and critical research. And with global competition more fierce than ever, the paranoia is at a fever pitch. Being a member of this so-called professional industry a few words of wisdom from me to you may help you from being deceived from business owners who rent chairs. After your interview make sure you take a copy of the contract to a lawyer, NOT YOUR FRIEND TO READ. But a Lawyer. Sign nothing, and if the owner will not let you take it out of the salon to give to an attorney, they are probably 100% not honest with you. SCAMMERS are abundant in the beauty industry my friends. Do not get your advice on Non-Compete contracts from a beauty industry magazine, beauty industry website, a hair idol, or so-called Icon, but from an attorney licensed in your state. Read On My Friends.

In Pictures: Five Tips For Negotiating Non-Compete Contracts

While you probably can’t avoid having to sign these contracts, you should make every effort to negotiate as much wiggle room as possible. It is your business and you must conduct yourself as a business owner.

First step: Hire an attorney to vet your contract before you sign it. Yes, you might pay $200 to $500 an hour for the privilege, but that’s probably a good bet. The cost of going to trial over a breach of a non-compete typically runs in the tens of thousands of dollars. Even if you do win the case, you don’t recoup those legal fees, as defendants typically do in other cases. If you lose, you’re out of work to boot.

If you’re presented with a non-compete clause, send your potential employer a letter confirming that you are consulting an attorney to make sure you understand all the terms. Declaring that step in writing is important because it prevents the employer from retaliating by swiping the job offer later on. (Judges don’t look too kindly on a move like that.)

In lieu of a traditional non-compete contract, try to angle for a “non-disclosure” or a “non-solicitation” agreement. Non-disclosure agreements stipulate that departing employees can’t make off with valuable research, while non-solicitation agreements prohibit them from going after important clients–except those they cultivated prior to joining the company. If that doesn’t work, focus on winnowing the scope of the non-compete. “The employer is going to push it to be as broad as possible, but you want to make it as restricted as possible without jeopardizing the job offer. Two key elements here: geography and time. Try to limit both. Reasonable restrictions will vary by industry, of course.

For example, temporarily barring a hairstylist from working in an entire county might not be plausible, but shackling a pharmaceutical rep in the same area might. Contracts stating that you can’t work in the industry throughout the U.S. probably won’t hold up in court, although some tech companies may be able to enforce them, because of the global nature of the Internet. The same strategy goes for the time span of the non-compete. The standard window for these contracts is six months to a year. Anything more than two years is downright draconian, and probably won’t hold up in court. Then again, don’t count on a judge to bail you out. “You still have to pay for litigation, or hope that your new employer will pay for it. In a tough economy, that’s a chance you probably don’t want to take. Take my advice my fellow professionals go see a lawyer.

Legal matters

While there are no federal laws directly governing non-compete agreements, some states do address the legality of such agreements. Under Wisconsin law, for example, the agreements must:

  • Be necessary for the protection of the employer;
  • Provide a reasonable time period;
  • Cover a reasonable territory;
  • Not be unreasonable to the employee; and
  • Not be unreasonable to the general public.

Although most states will enforce non-compete agreements if they are “reasonable” in terms of breadth and length of the restriction, the definition of what is “reasonable” varies. When crafting a non-compete agreement, an organization must pay careful attention to the agreement’s scope. An overly limiting agreement may be deemed un-enforceable by state courts.

 

 

California Superior Court Gives Brazilian Blowout 30 Days to Reformulate or Remove Products from Marketplace

~ Joseph Kellner

Los Angeles—The California Superior Court, County of Los Angeles, issued an order on November 29, 2012 requiring the manufacturers of Brazilian Blowout hair straightening solution, GIB, LLC (GIB) to stop selling its product in California within 30 days and prove that its new, reformulated product meets California Air Quality Standards. According to the attorney general’s court papers, testing by three different laboratories shows that GIB’s hair straightening product violates California air quality law and emits smog-forming pollutants at levels higher than allowed by the California Air Resources Board. Formaldehyde, a human carcinogen, is a major ingredient in Brazilian Blowout.

“The move to pull the original Brazilian Blowout formula from the market is a victory for women’s health,” said Alexandra Scranton, on behalf of the National Healthy Nail and Beauty Salon Alliance. “Brazilian Blowout continues to expose salon workers to cancer-causing chemicals and it clearly violates California’s air pollution standards.”

In a previous settlement agreement with California Attorney General Kamala Harris’s office, GIB agreed to stop deceptively advertising the product as formaldehyde-free and put caution stickers on their product advising users that it releases carcinogenic formaldehyde gas. The company also agreed to participate in further testing to evaluate whether its Brazilian Blowout product violated California air quality laws and reformulate its product if it were found in violation.

Three independent laboratory tests showed that Brazilian Blowout releases high levels of Volatile Organic Compounds (VOCs) and in violation of its previous agreement with the State of California, GIB had refused to either reformulate Brazilian Blowout or remove it from the marketplace. Following that refusal, the California Attorney General’s Office asked the California Superior Court to remove Brazilian Blowout from the market on October 9, 2012.

According to the California Air Resources Board, VOCs are an important component in the formation of ground level ozone, a major part of California’s smog problem. The Board’s air quality standards require that Brazilian Blowout contain no more than six percent VOCs by weight. Testing by two independent labs approved by the company, and testing by the Board, found Brazilian Blowout contained between 8.1 percent and 11.49 percent of regulated VOCs by weight.

“We applaud the attorney general for vigorously pursuing an action against this manufacturer who evidently believes it can ignore the law without repercussion. A cosmetic product should never contain formaldehyde, a known carcinogen and respiratory irritant. It’s reassuring that the original formula of Brazilian Blowout, due to violating air quality laws, will no longer be around to harm consumers and hair salon workers in California,” said Catherine Porter with the National Healthy Nail and Beauty Salon Alliance.

Stylists who regularly perform Brazilian Blowout treatments are exposed to formaldehyde gas at levels well in excess of the state’s Proposition 65 warning threshold, according to the California AG’s lawsuit.

“As a hairstylist that has been seriously affected by Brazilian Blowout, I know firsthand just how dangerous this product is. Getting the original Brazilian Blowout formula off the shelves will be a big win for salon workers who have suffered irreparable health problems due to exposure to this product,” said California salon worker Jennifer Arce.

According to the California Attorney General’s office, the California Air Resources Board will test the reformulation of Brazilian Blowout by December 15 to ensure the product meets the VOC limit of six percent.

Brazilian Blowout has been banned in Canada and at least four other countries, including Germany, France, Ireland and Australia, but is still allowed to be sold in the U.S. The federal Safe Cosmetics Act, introduced into the U.S. House of Representatives in July 2011 by Reps. Jan Schakowsky (D-Ill.), Ed Markey (D-Mass.) and Tammy Baldwin (D-Wisc.) would ban chemicals known to cause cancer from cosmetics, as many other countries have already done.

“This dangerous product never should have been on the market to begin with,” said Janet Nudelman on behalf of the Campaign for Safe Cosmetics. “But because of lax U.S. regulation, countless stylists and salon patrons have been exposed to harmful levels of formaldehyde.  Unfortunately, Brazilian Blowout is just one of many examples of why Congress needs to pass the Safe Cosmetics Act.”

Loreal buys up – Emiliani Enterprises and Urban Decay Real Hair Truth!

~ Joseph Kellner

 

French cosmetics giant L’Oreal S.A. (OR.FR)  reached an agreement to buy U.S.-based Emiliani Enterprises, a professional distribution business, for an undisclosed amount. Emiliani Enterprises established in the metropolitan New York area, New Jersey and Connecticut,  supplies hair salons through a network of representatives and sales outlets open only to professionals. Which wont last to long since L’Oreal acquired the company, L’Oreal USA will extend its distribution in the U.S., which now covers 48 states in the U.S. out of 50. And as for Urban Decay, created in 1996 by make-up expert Wende Zomnir, has built a reputation based on the concept of beauty with an edge and values of femininity and irreverence. The line has star products in the eye category such as the Naked Palette and recently successfully launched its new foundation, the Naked Skin weightless liquid make-up. Urban Decay is popular among the youthful highly-involved cutting-edge consumers who are attracted by the fashion-forward image of the brand. The market for make-up specialist brands represents 44% of the luxury make-up market in the US. In the fiscal year ended in June 2012, Urban Decay recorded net sales of 130 million US dollars. Urban Decay is distributed in the key assisted self-service channel which includes among others Ulta and Sephora. Which does not tell you much since everything and anything can be purchased in Ulta.

L’Oréal USA, headquartered in New York City, with 2011 sales of over $5.1 billion and 9,800 employees, is a wholly-owned subsidiary of L’Oréal SA, the world’s leading beauty company. In addition to corporate headquarters in New York, L’Oréal USA has Research and Innovation, Manufacturing and Distribution facilities across seven states, including New Jersey, Kentucky, Arkansas, Illinois, Ohio, Texas and Washington.  L’Oréal’s impressive portfolio of brands includes Lancôme, Giorgio Armani Beauty, Yves Saint Laurent Beauté, Viktor & Rolf, Diesel, Cacharel, Clarisonic, L’Oréal Paris, Garnier, Vichy, La Roche-Posay, L’Oréal Professionnel, Kérastase and Shu Uemura Art of Hair, Maybelline New York, Soft-Sheen.Carson, Kiehl’s Since 1851, Ralph Lauren Fragrances, essie Cosmetics, Redken 5th Avenue NYC, Matrix, Mizani, Pureology, SkinCeuticals and Dermablend. Basically your typical drug store shit. I will guarantee you more and more so called professional haircare products will show up on the commercial sectore of the consumer market.

Safe Cosmetics? USDA stamp of approval in organics!

~ Joseph Kellner

Cosmetics, Body Care Products, and Personal Care Products

USDA regulates the term “organic” as it applies to agricultural products through its National Organic Program, if a cosmetic, body care product, or personal care product contains or is made up of agricultural ingredients, and can meet the USDA/NOP organic production, handling, processing and labeling standards, it may be eligible to be certified under the NOP regulations. Know this my fellow industry professionals. This is the governmental agency who will certify a beauty product as “ORGANIC”!

The operations which produce the organic agricultural ingredients, the handlers of these agricultural ingredients, and the manufacturer of the final product must all be certified by a USDA-accredited organic certifying agent. Once certified, cosmetics, personal care products, and body care products are eligible for the same 4 organic labeling categories as all other agricultural products, based on their organic content and other factors.

“100 percent organic” – Product must contain (excluding water and salt) only organically produced ingredients. Products may display the USDA Organic Seal and must display the certifying agent’s name and address.

“Organic” – Product must contain at least 95 percent organically produced ingredients (excluding water and salt).

 Remaining product ingredients must consist of nonagricultural substances approved on the National List or nonorganically produced agricultural products that are not commercially available in organic form, also on the National List. Products may display the USDA Organic Seal and must display the certifying agent’s name and address.

 “Made with organic ingredients”– Products contain at least 70 percent organic ingredients and product label can list up to three of the organic ingredients or “food” groups on the principal display panel. For example, body lotion made with at least 70 percent organic ingredients (excluding water and salt) and only organic herbs may be labeled either “body lotion made with organic lavender, rosemary, and chamomile,” or “body lotion made with organic herbs.” Products may not display the USDA Organic Seal and must display the certifying agent’s name and address.

Less than 70 percent organic ingredients- -Products cannot use the term “organic” anywhere on the principal display panel. However, they may identify the specific ingredients that are USDA-certified as being organically produced on the ingredients statement on the information panel. Products may not display the USDA Organic Seal and may not display a certifying agent’s name and address. (Water and salt are also excluded here.)

 Cosmetics, Body Care Products, and Personal Care Products

 Any cosmetic, body care product, or personal care product that does not meet the production, handling, processing, labeling, and certification standards described above, may not state, imply, or convey in any way that the product is USDA-certified organic or meets the USDA organic standards. The USDA has no authority over the production and labeling of cosmetics, body care products, and personal care products that are not made up of agricultural ingredients, or do not make any claims to meeting USDA organic standards. Cosmetics, body care products, and personal care products may be certified to other, private standards and be marketed to those private standards in the United States. These standards might include foreign organic standards, eco-labels, earth friendly, etc. USDA’s NOP does not regulate these labels at this time.

You Should know FDA Authority Over Beauty/Cosmetics

~ Joseph Kellner
 
Sorry everyone I’m not selling hair care, or teaching haircuts, or color but what I can give you is information that you should know. I have been in the Beauty/Cosmetic industry for well over 25 years and take it from me, a product is here yesterday and gone tomorrow. In Cosmetology school there is a lack of education being given to the student on laws of products, what a manufacturer can say and not say ie (labeling, ingredient’s). What governmental agency’s are there for the protection of the independent stylist and also for the salon employee. Many, many individuals will set up blogs, websites telling you how to overcome customer relations, how to hair color, how to haircutting, and often these individuals will set up a class telling you how to make a ‘Facebook page”. I see this alot at the beauty shows in my industry. But I never really see the hard facts being given to the professional. Its easy to skirt the issues of the beauty industry, “Keep the dumb”, I say. Which to me is so very sad. Many of my fellow professionals are given a line of BS, and are insulted by manufacturers and so-called beauty icons and magazine and websites. Not really taking the issues that are needed for change in my industry, Product knowledge is what they will get and only enough education to buy a product the manufacturers are pushing. Below is important information you should know about the FDA, and how it will help you within your profession. Never, never take the sales persons,distributors or manufactures word as law in the beauty/cosmetic industry, investigate on your own and come to your on conclusions. And if you see a so-called beauty industry “ICON’ pushing a product, WATCHOUT, they are basically being paid to SELL that product!
What does the law say about cosmetic safety and labeling?
The two most important laws pertaining to cosmetics marketed in the United States are the Federal Food, Drug, and Cosmetic Act1 (FD&C Act) and the Fair Packaging and Labeling Act2 (FPLA). The Food, Drug & Cosmetic Act prohibits the marketing of adulterated or misbranded cosmetics in interstate commerce. Violations of the Act involving product composition–whether they result from ingredients, contaminants, processing, packaging, or shipping and handling–cause cosmetics to be adulterated and subject to regulatory action.
 
Under the FD&C Act, a cosmetic is adulterated if–
“it bears or contains any poisonous or deleterious substance which may render it injurious to users under the conditions of use prescribed in the labeling thereof, or under conditions of use as are customary and usual” [with an exception made for hair dyes];
“it consists in whole or in part of any filthy putrid, or decomposed substance”;
“it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health”;
“its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health”; or except for hair dyes, “it is, or it bears or contains, a color additive4 which is unsafe within the meaning of section 721(a)” of the FD&C Act. (FD&C Act, sec. 601).
 
Improperly labeled or deceptively packaged products are considered misbranded and subject to regulatory action. Under the FD&C Act, a cosmetic is considered misbranded if–
“its labeling is false or misleading in any particular”;
“its label does not include all required information;
“the required information is not adequately prominent and conspicuous;
“its container is so made, formed, or filled as to be misleading”;
“it is a color additive, other than a hair dye, that does not conform to applicable regulations issued under section 721 of the FD&C Act; and
“its packaging or labeling is in violation of an applicable regulation issued pursuant to section 3 or 4 of the Poison Prevention Packaging Act of 1970.” (FD&C Act, sec. 602)
In addition, under the authority of the FPLA, FDA requires an ingredient declaration to enable consumers to make informed purchasing decisions. Cosmetics that fail to comply with the FPLA are considered misbranded under the FD&C Act. It is important to understand that Congress passes the laws that govern the United States. To put those laws into effect, Congress authorizes certain government agencies, including FDA, to create and enforce regulations, but only as authorized under the law. A change in FDA’s statutory authority over cosmetics would require Congress to change the law.
Does FDA approve cosmetics before they go on the market?
FDA’s legal authority over cosmetics is different from other products regulated by the agency, such as drugs, biologic, and medical devices. Cosmetic products and ingredients are not subject to FDA premarket approval authority, with the exception of color additives. However, FDA may pursue enforcement action against violative products, or against firms or individuals who violate the law.
Must cosmetic manufacturers register with FDA?
Manufacturers are not required to register their cosmetic establishments, file data on ingredients, or report cosmetic-related injuries to FDA. However, companies are encouraged to register their establishments and file Cosmetic Product Ingredient Statements with FDA’s Voluntary Cosmetic Registration Program11 (VCRP).
Can FDA inspect cosmetic manufacturers?
FDA can and does inspect cosmetic manufacturing facilities10 to assure cosmetic product safety and determine whether cosmetics are adulterated or misbranded under the FD&C Act or FPLA.
What actions can FDA take against firms that market adulterated or misbranded cosmetics?
FDA may take regulatory action if it has information to support that a cosmetic is adulterated or misbranded. The agency can pursue action through the Department of Justice in the federal court system to remove adulterated and misbranded cosmetics from the market. To prevent further shipment of an adulterated or misbranded product, the agency may request a federal district court to issue a restraining order against the manufacturer or distributor of the violative cosmetic. Violative cosmetics may be subject to seizure. FDA also may initiate criminal action against a person violating the law. In addition, FDA works closely with the U.S. Customs and Border Protection8 to monitor imports. Under section 801(a) of the FD&C Act, imported cosmetics9 are subject to review by FDA at the time of entry through U.S. Customs. Products that do not comply with FDA laws and regulations are subject to refusal of admission into the United States. Violative products must be brought into compliance (if feasible), destroyed, or re-exported. FDA takes regulatory action based upon agency priorities, consistent with public health concerns and available resources.
 
Can FDA order the recall of a hazardous cosmetic from the market?
Recalls of cosmetics are voluntary actions taken by manufacturers or distributors to remove from the marketplace products that represent a hazard or gross deception, or that are somehow defective. FDA categorizes a firms action as a recall (as opposed to a market withdrawal) when it determines that the product hazard or defect represents a violation of the FD&C Act. FDA is not authorized to require recalls of cosmetics but does monitor companies that conduct a product recall and may request a product recall if the firm is not willing to remove dangerous products from the market without FDA’s written request. Recalls are addressed in Title 21 of the Code of Federal Regulations (CFR), sections 7.40 through 7.59.
Who is responsible for substantiating the safety of cosmetics?
Cosmetic firms are responsible for substantiating the safety of their products and ingredients before marketing. Failure to adequately substantiate the safety of a cosmetic product or its ingredients prior to marketing causes the product to be misbranded unless the following warning statement appears conspicuously on the principal display panel of the product’s label:
“Warning–The safety of this product has not been determined.” (21 CFR 740.10)
In addition, regulations prohibit or restrict the use of several ingredients5 in cosmetic products and require warning statements6 on the labels of certain types of cosmetics. In general, except for color additives and those ingredients which are prohibited or restricted from use in cosmetics by regulation, a manufacturer may use any ingredient in the formulation of a cosmetic provided that the ingredient and the finished cosmetic are safe, the product is properly , and the use of the ingredients does not otherwise cause the cosmetic to be adulterated or  under the laws that FDA enforces.
 
Joseph Kellner Hairdresser/Mua/Film Producer