Re: A slightly different preservative perspective

[Guest guest]

Hi,

>If you are in business, you need an

> individual consultation with a products liability lawyer, preferably one

> with cosmetic experience. End of story. I know it can be expensive, but

> can you really afford not to?

>

> (Hint: liability insurance is also a good thing to have)

I was just having the same thoughts.

Peace be with you,

Rowyn

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[Guest guest]

>From: nn <juliann@...>

>Well this is certainly scary, or should be, to people doing things beyond

>just lotions and creams and other aqueaous solutions. If you get down to

>it, aside from soap (which seems to resist mold and other microbial

>systems), ANYTHING should be preserved.

Anything that contains water or that you-as a manufacturer-have a reasonable

expectation that your customer will introduce water to the product. This is

the reason that some cosmetic chemists recommend a small amount of

preservative for lip balms.

I recently made a tub tea for

>christmas presents, clearly and boldly labeled " Dispose after use. Single

>use only. " Because hey, you get herb stuff wet, it's gonna get nasty the

>next day. But according to many of the people here, even though I have

>given clear instructions not to re-use, if someone re-uses, I could be

>legally responsible.

I haven't seen anyone say that on this list. Clearly, a one use product that

is labeled as such and packaged in one use containers shout not carry

liability if misused. The conversation on this list has revolved around

lotions and creams-that are not preserved-with an expiration date some time

in the future. When you consider that they may be contaminated before ever

leaving the manufacturer, it seems obvious that the liability should rest

with the manufacturer.

>As a lawyer by day, (although NOT a products liability specialist), even I

>think this seems to be taking it a bit too far.

Perhaps having read what I said above you will see it in a different light.

Clearly labeled hazards,

>to some degree, are the customer's responsability.

Not when rules that govern the industry have not been followed by the

manufacturer.

Think of all the

>warning signs not to use a hairdryer in the bathtub.

Comparing apples to oranges doesn't help.

Product misuse is NOT

>always the fault of the manufacturer.

I agree, and this is why attorneys like you can charge the fees you do to

defend the manufacturer that is wrongly accused.

>Yes, I have seen the FDA regs. The most common cited portion around here

>is the eye cosmetic rules about expirations and microbial

>contamination. But there is a point at which you cannot keep extending the

>analogy. Not every tolietry is a cosmetic or a drug.

I disagree. With the exception of soap, where the manufacturer chooses to be

under the soap exemption, everything else falls within the jurisdiction of

the FDA.

>I am NOT saying that people should not use preservatives, do challenge

>testing, etc. I am just saying that every person needs to be informed with

>SPECIFIC INFORMATION about EACH of their products. Also remember that

>hobbyists may be held to a lower legal standard (although it is always good

>to use a professional standard anyway).

I don't think I would give false hope to people being held to a lower

standard, especially if a customer is injured. When you advertise and sell a

product on a regular basis, I doubt that anyone would consider you a

hobbyist.

>In sum, DO NOT RELY ON THIS LIST for legal information. Do not rely

>strictly on the FDA web site.

Good advice on both counts.

If you are in business, you need an

>individual consultation with a products liability lawyer, preferably one

>with cosmetic experience. End of story. I know it can be expensive, but

>can you really afford not to?

If the attorney is anything like the ones I have dealt with in the past,

they will do all in their power to keep you out of court and will likely

recommend you taking measures that are far more stringent than what I have

recommended.

>(Hint: liability insurance is also a good thing to have)

Liability insurance may not pay for any damages if you willfully refuse to

follow the guidelines set down by your governing agency and use standards

that are not the norm for your industry. You should know that.

Pat.

Peace, Joy, Serenity.

www.houseofscents.com

Cosmeticinfo

[Guest guest]

nn <juliann@...>

> Yes but many of the people on the list, like myself, DO NOT

> SELL. Anything, at all period. I define hobbyist as " not involving the

> exchange of money " .

I wish you had clarified this on the list instead of in a personal

correspondence to me, because anything that can be misinterpreted, will be.

There are people on the lists that consider themselves hobbyists because

they only sell occasionally, or at craft fairs.

As such they do not have a customer. As such they do

> not have to follow the same guidelines and laws. Look at the difference

> between the food preparation guidelines and people who give away cookies

to

> their neighbors.

True, but I don't think you can compare a cookie-that has been heated at

high temperatures for enough time to kill any bacteria-and will be consumed

within a day or two, to a lotion that will continue to grow bacteria the

longer it sits.

> That is the point i am trying to make. Yes, people who do this

> professionally (ie who sell their product) are bound by the regulations.

I

> do not see anything in the FDA rules about people who do this for

> fun.

You can pretty much do as you please with your own body, so there is no need

for the FDA to address this issue.

Yes, it would be a shame if people got hurt. But on the other hand

> the *law* (not ethics, or morality or justice) does NOT hold amateurs to

> the same standard as professionals.

Let me ask you a question. If an amateur were to get sued because their

product injured someone, and the opposing attorney was able to prove that

the amateur was a member of this or another list, where time and time again

they were exposed to information of the dangers of not using a preservative,

do you honestly think they would be held to the lower standard? In my State

each side is liable for their own legal costs. I don't need to tell you that

those can be significant, win or lose.

> >Liability insurance may not pay for any damages if you willfully refuse

to

> >follow the guidelines set down by your governing agency and use standards

> >that are not the norm for your industry. You should know that.

>

> Which is why I said *also*. Not *in place of*.

I was just clarifying because many people think that the risk is not theirs

simply because they carry insurance.

> I totally agree with the concept that everyone involved in toiletry

> production has a responsibility not to harm anyone. But there is also a

> lot of scare mongering on the list that I don't think is

> necessary, Hobbyists are in a different class, legally speaking, as

people

> who sell. People accepting gifts should consider the source.

I don't think it is scare mongering to inform people that there are

consequences for their actions. Hobbyists may be in a different class. I

think a good argument can be made that from once exposed to the fact that

their product can injure and they refuse to take steps to correct it, then

they too, can be held to the higher standard.

> Disposable, one-use items, labelled and packaged as such, are still items

> which are beyond the control of the creator once in the hands of the

> user. I find very little LEGAL difference between the expiry date system

> and the single use system.

If you made a lotion in small enough containers using the canning method and

gave them away or sold them as one use items, I would agree with you. We

both know that this is not likely to happen and that there is a difference

between a product-like a tea bag-designed as a one use item, and a 8 oz.

bottle of lotion.

A great number of people will ignore both. But

> there comes a point in time where with some products, the consumer must

> take responsability for contraindicating instructions.

This is true, but the law is on the consumers side when it comes to

cosmetics.

nn, I believe that you intended your message to go to the list as well

as to me personally. As I haven't deleted any part of your message-other

than parts you were responding to, written by me-I will post this answer to

the list as well as sending it directly to you as well.

Pat.

Peace, Joy, Serenity.

www.houseofscents.com

Cosmeticinfo

[Guest guest]

In a message dated 12/3/00 3:37:07 PM Eastern Standard Time,

achil@... writes:

<< nn, I believe that you intended your message to go to the list as well

as to me personally. As I haven't deleted any part of your message-other

than parts you were responding to, written by me-I will post this answer to

the list as well as sending it directly to you as well. >>

Thank you for sharing this valuable information with all of us. There is a

lot of excellent food for thought here. We all need to be aware... of rules

and regs, as well as potentialities that can happen after our products leave

our hands. Intelligent decisions can then be made... and sharing the wealth

of information that each of us has, *including* the occasional

misunderstanding or misconception, then using collective information, we all

benefit. 1400 heads are better than one!

Lynne in Vermont