Categories
Cases General / Musings Textiles

Do Product Labels Matter? Maybe.

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Why is a can for Minute Maid juice like a coat? The answer: Because federal statutes and government regulations prescribe how each is labeled. In the case of juice, the label is prescribed by the U.S. Food and Drug Administration (FDA) regulations promulgated under the Nutritional Labeling and Education Act of 1990. In the case of the coat, as apparel manufacturers are all too aware, by the Federal Trade Commission (FTC) under either the venerable Wool Products Labeling Act of 1939 or the Textile Fiber Products Identification Act. The regulatory schemes share ostensibly the same goal: to assure a uniform national standard and to inform consumers of the content and the qualities of the goods. But what if prescribed rules do not further that purpose?

That is a question posed by a case that the Supreme Court heard on April 21, 2014 Pom Wonderful LLC v. The Coca-Cola Company. Pom’s business revolves around marketing beverages featuring pomegranate juice. Coca-Cola, wishing to cash in on the craze for such beverages, introduced a Minute Maid juice it called “Pomegranate Blueberry.” Notwithstanding the name, pomegranate juice constituted only 0.3% of the contents, and blueberry only 0.2%. The 99.4% of the contents which consisted of apple and grape juice was uncredited in the product name and the graphics decorating the label. Pom sued, claiming that the name “Pomegranate Blueberry” constituted false advertising and unfair competition, as consumers would naturally infer that the product’s main ingredients were pomegranate and blueberry juices. Unfortunately for Pom (and, one might add, for consumers seeking the health benefits of pomegranates and blueberries), FDA regulations specifically permit naming a product for ingredients so minor that they could be described as no more than flavoring.

So, now, the Supreme Court will decide whether a competitor can sue for false advertising and unfair competition when the contents of a label are authorized (or sometimes even required) by government regulations, no matter how misleading. In the language of the law, do the specific provisions of federal labeling law preempt federal and state laws that more broadly and generally protect consumers and competitors from deception as to the contents or quality of the goods?

Should the Court find for Pom, attention will have to be given not only to technical compliance with legal requirements, but also to whether consumers are likely to be misled. One might think Coca-Cola has the better argument. After all, if your labels comply with federal regulations, you should not have to worry about what consumers think. If there is a problem, the fault lies with the government and its regulations. But that conclusion might be wrong. Some of the justices appeared to view the labels as very misleading. Others wondered whether the FDA considered anything other than health and safety in promulgating the regulations and questioned whether assuring that consumers are not misled was the responsibility of the FDA.

Of course, that is the responsibility of the FTC and it is the purpose ostensibly served by the FTC labeling rules for textiles. But even under the FTC rules, you can name your line of sheets “Bamboo,” as long as that is just the name and the fine print on your label states that the fabric is rayon made from bamboo fibers. After all, this is consistent with a regulatory scheme that requires you to state the country of origin of a coat but not that of vitamins or toothpaste.

Credit:  Helene M. Freeman

Categories
Accessories Childrenswear General / Musings Intellectual Property Menswear Womenswear

Fashion: It is a business.

In business law, whatever the business might be, commercial considerations come first.  An airtight contract or brilliantly argued appeal means nothing if it showcases the lawyer’s prowess but fails to deliver on the client’s business objectives.  For anyone practicing fashion law, the first rule, after knowing the law, is to know fashion and the fashion business.

Dressmaker dummies / mannequines / modelsWithin that broad mandate, we all bring our personal points of view, as future posts on these pages will surely reveal.  And here are a few of mine:

Our Fashion Practice Group represents designers, manufacturers, brands and retailers.  That translates roughly into hope, expectation and reality.  Design has every right to be seen as one of the applied arts; as with all the arts, practitioners must be mindful of the marketplace but not be a slave to market expectations.  Overall, I see designers as optimists by nature; they are energized by hope even as they labor to fulfill our dreams.

In representing designers, we borrow methods from our art law and general business practices, working to defend originality in design with the legal tools of copyright, trade dress and design patent protections.  In contracts, we help designers in their relationships with the makers of the fashions they conceive and in the protection of their names as brands.

For a manufacturer or brand owner, the designer’s work has transformed into expectation–of sales, market share and ultimately of brand enhancement.  Here is where we devote much of our work to trademark protection, contracts with suppliers ranging from manufacturing sources to advertising agencies, to factoring deals, and contracts with retailers.

What is retail if not a bucket of true reality for every fashion design ever to make its way to the judge and jury of all fashions—the eye and wallet of the consumer?  To make that a successful encounter, we help with store leases; the employment of sales staff and others; stop-in-shop deals; and, of such increasing importance, website development and maintenance, and social media utilization.  However inspired the vision, however brilliant the execution, and however clever the marketing and display, if the customer does not buy it, what you have on the racks are rags, not riches.  The job of the fashion lawyer is to do what he or she can to bring each fashion fairytale to a close in the way that all fairytales should—with a happy ending.

Credit:  Alan Behr

Categories
General / Musings

Why We Are Here

The members of the Fashion Practice of Phillips Nizer
are all here for one very good reason:

We love fashion.

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Some of us may have entered the field from working with those on the design side and others from representing participants on the business end of fashion.  Because the law and the business are always evolving, we are all busy staying on top of what is happening with both.  At times, we may not agree even with each other on what the law provides on a particular point or what the law should provide.  In our personal lives, some in our practice group may gravitate toward casual dress, others may prefer more formality.  And some may prefer checks and others stripes.  But no matter.  We are all here, working every day to assist our clients at all levels of the fashion trade.

We are aware that certain other areas of the law may be seen by some as possibly having greater social weight such as (just perhaps) defending the Bill of Rights or trying capital offenses.  But we submit that no one in any other area of law will see so many plot twists while rendering services or have such an interesting experience in doing so.

Fashion, after all, affects everybody.  You simply cannot avoid it.  Even someone who claims to have no use for fashion, who deliberately dresses down and snubs every trend and fad is making a fashion choice by doing just that.  What other area of the law so fully combines the law of art, design, licensing, leasing, employment, franchising, lending, music, personal rights, privacy and publicity, electronic facilities and so much more?  And as for being a venue for the full enjoyment of the human comedy—please, don’t get me started.  So feel free, in the coming weeks and months, to join us on these pages as we review and, on occasion, even attempt to understand and explain, the law, the business and the joy of fashion.

Credit:  Alan Behr