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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Adherence to the rule of law is a bedrock principle

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Speaker 2: of the Department of Justice, and our nation's commitment to

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Speaker 2: the rule of law sets an example for the world.

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Speaker 2: We have one set of laws in this country, and

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Speaker 2: the apply to everyone.

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Speaker 1: In announcing one of the two federal criminal cases against

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Speaker 1: Donald Trump, Special Council Jack Smith said that no one

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Speaker 1: is above the law. It applies equally to everyone. However,

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Speaker 1: the former president is claiming the law doesn't apply to him.

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Speaker 1: Trump says he's entitled to absolute presidential immunity against criminal

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Speaker 1: charges over his efforts to overturn the twenty twenty presidential election.

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Speaker 1: So the Special Council is attempting to do an end

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Speaker 1: run around the DC Appellate Court by asking the Supreme

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Speaker 1: Court to step in to decide the issue you in

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Speaker 1: an effort to prevent a delay of the trial scheduled

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Speaker 1: to start on March fourth. My guest is Derek Muller,

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Speaker 1: a professor at Notre Dame Law School. Derek tell us

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Speaker 1: a little about Trump's claims of immunity.

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Speaker 3: So there are a couple of immunity claims that are happening. One,

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Speaker 3: probably the weaker one in my judgment at least, is

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Speaker 3: that he was acquitted of certain things in his second

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Speaker 3: impeachment trial, and as a result that acquittal should function

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Speaker 3: as a kind of immunity from prosecution. Now, it seems

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Speaker 3: to me that there's a difference between impeachment and you know,

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Speaker 3: other kinds of criminal penalties. But it's at least an

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Speaker 3: argument that's been raised many other The more probably material one,

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Speaker 3: the one's getting more attention is to think about, you know,

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Speaker 3: immunity from your actions as president. That is, you are

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Speaker 3: engaged in your official capacity, you are engaged in executive functions,

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Speaker 3: and the notion that you can be criminally prosecuted for

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Speaker 3: that behavior, for the things that you're doing while you're

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Speaker 3: conducting your job, and should be exempt from criminal prosecution

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Speaker 3: as a result. And I get a lot of turns on, well,

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Speaker 3: at what point does your behavior sort of flip from

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Speaker 3: official executive behavior too unofficial behavior, political or individual behavior.

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Speaker 3: You know, is there an immunity for crimes committed if

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Speaker 3: you're purporting to them in your official capacity, How could

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Speaker 3: that possibly be the case? And so on. So that's

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Speaker 3: kind of the heart of these immunity claims that are

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Speaker 3: arising here.

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Speaker 1: The Special Council is asking the Supreme Court to step

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Speaker 1: in using Scherare before judgment, which is essentially skipping the

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Speaker 1: appellate court. It's unusual, But how unusual is it for

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Speaker 1: the court to grant that kind of review?

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Speaker 3: Pretty unusual, I mean, so, I think you can think

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Speaker 3: about it this as some layers. If you're asking the

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Speaker 3: Supreme Court to have a petition for Corcherai before judgment,

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Speaker 3: you know, sometimes that might arise if there's just a

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Speaker 3: sort of preliminary injunction or preliminary posture of the case

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Speaker 3: where maybe you want the Court to step in, and

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Speaker 3: so that happens. It's not common, but it's not uncommon.

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Speaker 3: It's a relatively infrequent occurrence for the Court to step in,

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Speaker 3: But to sort of ask them to skip the Court

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Speaker 3: of Appeals and go straight to the United States Supreme

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Speaker 3: Court to resolve this matter before the DC Circuit has

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Speaker 3: weighed in is more unusual. Now, on the one hand,

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Speaker 3: you could say, well, I think this is a matter

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Speaker 3: of presidential executive power. Has happened in some of the

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Speaker 3: cases involving Richard Nixon. If we're dealing with executive power

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Speaker 3: and criminal investigations and so on, and these are major

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Speaker 3: issues that we expect the Supreme Court is going to

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Speaker 3: have to weigh in at some point. So there's this

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Speaker 3: notion up front that they'll weigh in, and so maybe

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Speaker 3: we should just skip that stepping at the United States

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Speaker 3: Supreme Court involved if it's extraordinary. True, but these are

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Speaker 3: extraordinary circumstances. On the other hand, you have to think

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Speaker 3: from the justices perspective about their willingness to sort of

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Speaker 3: step in here and say, well, can we just let

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Speaker 3: the process play out? Maybe if the d C circuit

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Speaker 3: is a good job, we don't really have to weigh in.

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Speaker 3: We can kind of agree with what they've said and

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Speaker 3: just you know, passively let the case kind of continue

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Speaker 3: below without us having a weigh in. So there's just

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Speaker 3: some questions about what the court might do. But kind

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Speaker 3: it's understandable why the prosecution wants to move this as

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Speaker 3: quickly as possible.

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Speaker 1: Yeah, So, I mean, is that the real heart of

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Speaker 1: the prosecution's claim that they don't want to delay the

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Speaker 1: March forth trial date? And then does it become political

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Speaker 1: because I mean, trials are delayed all the time, But

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Speaker 1: if it's delayed in this case and he wins the presidency,

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Speaker 1: then it'll never happen.

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Speaker 3: Yeah, I mean, I think when you're thinking about the strategy,

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Speaker 3: here a cynical reason and I don't think this is

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Speaker 3: the reason, but a cimical reason is, well, I think

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Speaker 3: I'm going to lose the DC Circuit, so I want

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Speaker 3: the Supreme Court to weigh in right away anyway, And

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Speaker 3: I don't think that's right. I think the concern is

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Speaker 3: if we have to go through a level of briefing

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Speaker 3: an oral argument and waiting for an opinion at the

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Speaker 3: DC Circuit and then wait for another round of appeals

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Speaker 3: to the United States Supreme Court and do the same

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Speaker 3: thing all over again, which we feel like is inevitable,

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Speaker 3: that can really start to press upon on that March

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Speaker 3: fourth date. And so there is this effort to move

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Speaker 3: things along as quickly as possible. And yeah, I think

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Speaker 3: you're right that we have this concern if you're the prosecutor,

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Speaker 3: that if there's any delay, this thing gets pushed back,

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Speaker 3: and then there's all kinds of additional complexities. You know,

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Speaker 3: what happens if he's the nominee for the party. Can

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Speaker 3: we realistically expect him to be facing criminal charges or

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Speaker 3: sitting in a courtroom while he's supposed to be campaigning

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Speaker 3: for president. That raises all kinds of unique and additional

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Speaker 3: questions that have to happen. So we want this to

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Speaker 3: be resolved as early as possible. If he's guilty, something

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Speaker 3: the voters ought to know. If it's not guilty, also

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Speaker 3: something the voters want to know. So there is this

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Speaker 3: effort to resolve as early as possible. But there's no

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Speaker 3: question it has some political valance to it. There's some

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Speaker 3: political charge because whenever you're dealing with the front running

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Speaker 3: candidate for presidential nomination for a major political party, whatever

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Speaker 3: you do in any direction is going to have some

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Speaker 3: kind of political ramifications and definitely some risks that we're

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Speaker 3: going to see out about how we balance those things.

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Speaker 1: And it was a different court, but you mentioned US v.

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Speaker 1: Nixon in nineteen seventy four. In that case, I believe

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Speaker 1: it was sixty one days from start to finish.

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Speaker 3: Yeah, So I mean, we can move things quickly, and

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Speaker 3: it's no question that we can move things quickly in

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Speaker 3: these processes for the United States Supreme Court. I think

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Speaker 3: about bushfee Gore, where they granted cert on December ninth,

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Speaker 3: or argument December eleventh, decision December twelfth. I mean, that's

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Speaker 3: that's record pace to move it in three days, right,

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Speaker 3: But it's hard. These are hard issues for the DC Circuit.

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Speaker 3: They've recently been asked to handle a variety of hard

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Speaker 3: issues with a gag order placed on former President Trump

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Speaker 3: on some other issues relating to charges and conduct. And

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Speaker 3: you know, the courts have come from consensus and opinions.

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Speaker 3: They've written things, but it's taken them a few weeks,

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Speaker 3: and they're long opinions and sometimes some judges right separately,

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Speaker 3: so that there's just a lot of things that have

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Speaker 3: to be weighed here when you're looking at that March

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Speaker 3: fourth deadline. And so it's under standable why you'd want

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Speaker 3: to skip the d C Circuit straight to the United

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Speaker 3: States Supreme Court and to give them more time, right,

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Speaker 3: Because if you're saying in action is a form of action, right,

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Speaker 3: if you are failing to act in a timely manner,

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Speaker 3: you are effectively allowing the trial date to be pushed back.

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Speaker 3: The Court, I think, is going to have to weigh

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Speaker 3: that very seriously and decide, well, if we take this case,

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Speaker 3: we can have a couple of months for review rather

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Speaker 3: than just maybe a couple of weeks, which seems less

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Speaker 3: than ideal.

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Speaker 1: And the Appeals Court is going on a separate track

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Speaker 1: where the Special Council is also asking for expedited appeal.

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Speaker 3: Yeah, so I think the Special Council will seek expedited

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Speaker 3: review in the DC Circuit. I don't think there's a

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Speaker 3: scheduling order out there yet, although I'm sure that will

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Speaker 3: come out in the near future. But even then, if

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Speaker 3: you try and expedite a briefing schedule, you then have

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Speaker 3: to schedule oral argument, And while you have that as

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Speaker 3: a firm date, you don't know how long it will

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Speaker 3: take after oral argument to issue a decision. There's no

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Speaker 3: formal timeline on that. You can say that you'd like

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Speaker 3: it as quickly as possible, and the DC Circuit can try,

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Speaker 3: but you know it might take a couple of weeks,

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Speaker 3: even working under the fastest of circumstances. So just looking

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Speaker 3: at where are in the calendar, it's mid December. If

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Speaker 3: you try to move as quickly as possible and try

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Speaker 3: to get an oral argument by the beginning of January

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Speaker 3: and a couple of weeks for an opinion, it might

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Speaker 3: not be teed up for Supreme Court review until mid

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Speaker 3: to late January. And again, if you're looking at a

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Speaker 3: March fourth trial day, that adds a tremendous amount of

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Speaker 3: uncertainty and tremendous pressure on the Supreme Court to weigh

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Speaker 3: in kind on a truncated timeline. So it's the reason

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Speaker 3: why you say it's an extraordinary request from Smith's team

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Speaker 3: here to seek the Supreme Court review, but totally understandable

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Speaker 3: when you're looking at the calendar and what it looks like,

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Speaker 3: and that this is a major sort of barrier to

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Speaker 3: getting to that judgment. And if Trump is immune, if

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Speaker 3: the case goes away, and if he's not, then probably

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Speaker 3: his strongest defense is gone and we're going to a

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Speaker 3: jury trial.

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Speaker 1: Normally, our respondent gets a month to file a brief

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Speaker 1: opposing an appeal, but on Monday, the Supreme Court agreed

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Speaker 1: to speed up the part of the process it decides

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Speaker 1: whether to take the case. It's only giving Trump until

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Speaker 1: December twentieth to respond to the Special Council's request. Does

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Speaker 1: that indicate that the Justices are aware of the seriousness

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Speaker 1: of the case, or that they're inclined to grant the

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Speaker 1: Special counsel's request, I mean, does it indicate anything at all?

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Speaker 3: So I don't know if they're inclined to grant, but

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Speaker 3: I think it certainly means they are not disinclined. I mean,

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Speaker 3: this is a small but important victory for Smith's team here,

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Speaker 3: because if the Court just says, no, we're just going

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Speaker 3: to give you a month to respond, well, that pretty

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Speaker 3: much settles it, right, It pretty much makes the decision

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Speaker 3: for you. But by allowing expedited response to the petition

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Speaker 3: for it a sacherary, it keeps all of the Court's

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Speaker 3: options open, right whether to grant and then have it

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Speaker 3: on expedited basis, or to deny, send it back to

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Speaker 3: the DC Circuit allowed to proceed on a normal track.

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Speaker 3: So this was sort of a necessary win for Smith's team,

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Speaker 3: but it certainly I don't think suggests a whole a

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Speaker 3: lot about the merits, except that the Court is kind

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Speaker 3: of keeping its options open.

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Speaker 1: Coming up next, if the Justices do take the case,

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Speaker 1: how might they rule. I'm June Grosso and you're listening

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Speaker 1: to Bloomberg. Special counsel Jack Smith is asking the Supreme

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Speaker 1: Court to decide if Donald Trump is entitled to absolute

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Speaker 1: presidential immunity against criminal charges over his efforts to overturn

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Speaker 1: the twenty twenty presidential election. I've been talking to Notre

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Speaker 1: Dame Law School professor Derek Muller. This would be a

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Speaker 1: landmark decision, right, whether a former president can be prosecuted

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Speaker 1: for actions taken while in office. There's never been.

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Speaker 2: A case like this, that's right.

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Speaker 3: So no former president has been prosecuted for crimes, whether

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Speaker 3: that arose during or after he took office. We can

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Speaker 3: think about Nixon. The fact that President Jerald Ford sort

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Speaker 3: of indicated he would grant a pardon for former President

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Speaker 3: Nixon to sort of close the book on those cases,

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Speaker 3: at least the federal level, meant that was turning the

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Speaker 3: page whatever metaphor you UIA used to say that we're

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Speaker 3: moving on from this. So that was probably the most

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Speaker 3: sort of notorious example we can think about. But yeah,

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Speaker 3: but we haven't seen that with other presidents who have

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Speaker 3: left office. So this question remains an open one for

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Speaker 3: former President Clinton. You know, when he was in office,

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Speaker 3: he was sued in a civil case and the United

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Speaker 3: States Supreme Court it allowed him to be sued for that,

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Speaker 3: and certainly it was not official conduct. He was being

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Speaker 3: accused of it was personal conduct. So we have, you know,

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Speaker 3: a couple of things that we're looking at historically, but

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Speaker 3: really nothing on point. And yes, it would be a

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Speaker 3: landmark decision for the Supreme Court here to weigh in

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Speaker 3: and talk about the scope of presidential immunity to be

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Speaker 3: exempt from criminal prosecution upon leaving office.

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Speaker 1: Tell us about the arguments from Trump and the Special Council.

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Speaker 3: The President's argument is essentially that the conduct he engaged in,

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Speaker 3: whether it was trying to investigate voter fraud or trying

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Speaker 3: to make claims that they were fraud, or trying to

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Speaker 3: exert pressure on members of Congress or Vice President Mike

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Speaker 3: Pence and the Electoral count Act, or whatever it might be,

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Speaker 3: that these kinds of behavior were executive functions. They were

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Speaker 3: sort of presidential actions related to the ability to uphold

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Speaker 3: the law. They related to his ability to sort of

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Speaker 3: handle the oath of office and to uphold the Constitution,

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Speaker 3: and as a result, whatever he did sort of exempt

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Speaker 3: for prosecution. Whereas the Special Council side is to say, look,

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Speaker 3: these are criminal actions, they sort of fall outside of

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Speaker 3: the scope of any sort of immunity. There's nothing here

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Speaker 3: that we could say is actually protected by the Constitution

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Speaker 3: or protected by the official responsibilities. They're criminal actions, and

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Speaker 3: at that point they sort of fall outside of what

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Speaker 3: we would otherwise call ordinary executive behavior. And then additionally,

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Speaker 3: the question about whether or not he is acquittal during

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Speaker 3: impeachment exempt him now saying that Congress has essentially said no,

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Speaker 3: he cannot be blamed or has no blame for these

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Speaker 3: crimes and misdemeanors that he was accused of, or as

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Speaker 3: the special counselors to say, look, that's the impeachment Proceedingpeachment

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Speaker 3: proceedings are political processes, even though they look like a

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Speaker 3: trial process, a very different They don't exempt him from

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Speaker 3: the criminal process. It's a very different question. And so

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Speaker 3: there's no basis to say that acquittal and impeachment is

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Speaker 3: a basis to immunize him from future prosecution.

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Speaker 1: The trial judge, Tanya chuck And of course, refused to

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Speaker 1: toss out the indictment against Trump on grounds of presidential immunity,

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Speaker 1: saying whatever immunity is a sitting president may enjoy. The

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Speaker 1: United States has only one chief executive at a time,

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Speaker 1: and that position does not confer a lifelong get out

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Speaker 1: of jail free pass. Did you think that her decision

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Speaker 1: was well reasoned.

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Speaker 3: Yeah. I think one of the things we've seen you

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Speaker 3: with her opinions in particular, is that they've been affirmed

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Speaker 3: by the d C Circuit, although maybe tailored a little bit.

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Speaker 3: So her gag order was affirmed by the DC Circuit,

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Speaker 3: but the d C Circuit said, well, we want to

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Speaker 3: tailor it a little bit and make sure that we're

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Speaker 3: protective of First Amendment speech. And likewise, it definitely felt

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Speaker 3: like the judge recognized, you know, criminal conduct is not

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Speaker 3: going to be protected by executive action. Again, there's a

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Speaker 3: little bit of a play there because you're trying to

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Speaker 3: figure out what he is criminal action in the first place,

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Speaker 3: or what did you believe or engage in. So it

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Speaker 3: felt like it was a careful and well recent opinion. Now,

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Speaker 3: there are probably places where scholars who have studied this

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Speaker 3: area extraordinarily closely might picket some areas and the way

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Speaker 3: she set the test, and I'm sure to the exempt

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Speaker 3: of DC Circuit of the Supreme Court gets to consider it,

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Speaker 3: I'm sure there will be some picking at the test

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Speaker 3: however it reaches a decision. But on the whole, I

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Speaker 3: think the sentiment of the opinion was largely one that

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Speaker 3: is likely to be affirmed again substantially, maybe not entirely,

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Speaker 3: but substantially on appeal.

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Speaker 1: The Supreme Court has a six to three conservative majority,

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Speaker 1: but since Trump left office, the Court has not looked

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Speaker 1: upon him favorably in the cases he's brought. I mean,

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Speaker 1: does a conservative majority lean toward no presidents above the

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Speaker 1: law or does it lean in another direction?

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Speaker 3: I mean, I think whenever you're just this in the court,

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Speaker 3: and again, this is a benefit of being insulated from removal,

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Speaker 3: you know, barring impeachment or something like that, and the

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Speaker 3: ability that you have your job for a life allows

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Speaker 3: justices to sort of think a little bit more dispassionately

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Speaker 3: about these issues and realizing whatever you do here, just

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Speaker 3: like whatever happened with cases involving Bill Clinton, whatever cases

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Speaker 3: we're involving Richard Nixon, realized that you are setting major

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Speaker 3: precedents for presidential power, executive authority immunities, whatever they look like,

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Speaker 3: not just for Donald Trump, but also for Joe Biden,

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Speaker 3: whoever the next president is. Right, So there is I

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Speaker 3: think this institutional concern from the Court, and it's a

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Speaker 3: major question. We want to make sure that whatever we

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Speaker 3: articulate about when former presidents can be prosecuted again. The

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Speaker 3: fact that it's happened for the first time doesn't mean

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Speaker 3: it's not going to happen again in the very near future.

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Speaker 3: Once we've established that precedent, it's going to have a

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Speaker 3: lot of sway in the future for potentially a lot

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Speaker 3: of other cases. Maybe it's Republicans, maybe it's democrats. So

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Speaker 3: I think the court's, regardless of whether you're conservative or

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Speaker 3: more liberal, justice is going to be thinking about these

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Speaker 3: issues from other kinds of hallmarks of executive power and

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Speaker 3: what kinds of behavior or conduct in office immunize you

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Speaker 3: from future prosecutions where that immunity attaches and arises and

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Speaker 3: where it doesn't. I think there was recognition again in

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Speaker 3: the Clinton case that certain actions are official behaviors and

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Speaker 3: others are not. And another one of the cases in

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Speaker 3: front of the DC Circuit, they were talking about how

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Speaker 3: certain things of the president are official actions and other

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Speaker 3: things are political behaviors. When you're on the campaign trail, right,

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Speaker 3: there are things that are in your candidate or individual capacity.

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Speaker 3: So if that's the case, if there are these sort

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Speaker 3: of lines to be drawn that are context specific, the

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Speaker 3: Court has to be very careful about whatever they do,

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Speaker 3: whatever they come up with, and make sure that it's

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Speaker 3: something that can be readily administrable in the future, so

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Speaker 3: that it doesn't have to revisit these cases the next

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Speaker 3: time that a president faces similar things, which we hope

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Speaker 3: doesn't happen, but it wants to anticipate and know what

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Speaker 3: might be coming down the road.

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Speaker 1: Is this in any way a risk for the special

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Speaker 1: counsel asking for this?

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Speaker 3: So I don't think it's a very big risk. I

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Speaker 3: think the worst thing that can happen is the Supreme

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Speaker 3: Court says no, goes back to the DC Circuit, proceeds

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Speaker 3: as usual, and maybe he's not able to meet the

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Speaker 3: March fourth deadline, right, But you know, I think the

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Speaker 3: request is not one that seems overreaching. Again, just the

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Speaker 3: fact that it's extraordinary. He's got extraordinary facts on his side,

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Speaker 3: so he's got that and it's sort of the discretion

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Speaker 3: of the court to decide whether or not to grant it.

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Speaker 3: So it is extraordinary, but it's not abusive, right, And

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Speaker 3: it doesn't feel like entitlement. You know, it's not just Jackson,

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Speaker 3: it's Michael Dreaman's former Department Justice official. There who has

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Speaker 3: a lot of experience in front of the Supreme Court,

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Speaker 3: so carries some weight when you're thinking about this being

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Speaker 3: filed in front of the Supreme Court. So it's not

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Speaker 3: something that strikes me as egregious or outlandish that would

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Speaker 3: somehow turn the justices against the special prosecutor in future appeals.

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Speaker 3: It just strikes me as a series and weighty request

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Speaker 3: from one again, I think is a longer shot, but

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Speaker 3: certainly not impossible, And even if it's rejected, I don't

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Speaker 3: think there's any sort of negative fallout for the prosecutor's

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Speaker 3: team here.

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Speaker 1: We keep saying unprecedented in so many of these cases

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Speaker 1: involving Trump.

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Speaker 3: I think we are just in uncharted territory as we

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Speaker 3: are with many questions involving form President Trump, these criminal

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Speaker 3: cases that are percolating in federal and state courts around

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Speaker 3: the country, and a twenty twenty four presidential campaign that

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Speaker 3: is now hitting full swing. It's a lot of complicated

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Speaker 3: factors that we are facing in the year ahead.

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Speaker 1: Thanks so much for sharing your insights with us. Derek.

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Speaker 1: That's Derek Muller, a professor at Notre Dame Law School.

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Speaker 1: Coming up next on the Bloomberg Law show just what

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Speaker 1: is a clean beauty product and why are consumers suing

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Speaker 1: over them? Hey?

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Speaker 4: Everyone, it's Helen and I'm here with my beautiful model Lucy,

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Speaker 4: and today we're creating in every makeup look using all

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Speaker 4: clean at Sephora products. And I think you're going to

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Speaker 4: be just blown away by how simple this was to achieve.

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Speaker 5: Him Aisha, and I'm Melinda, and today we're going to

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Speaker 5: be talking about five clean beauty brands you need to know. Hi,

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Speaker 5: I'm Tamil and today I'm going to share with you

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Speaker 5: some of my top picks from my lipstick wardrobe and

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Speaker 5: they're all clean. Okay, So first up in my clean

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Speaker 5: beauty lip wardrobe is Tower.

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Speaker 1: Twenty eight Slipchelly. Sephora is just one of the companies

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Speaker 1: promoting clean beauty products. How much does that matter to

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Speaker 1: consumers like climate conscious gen zers and millennials. Well, the

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Speaker 1: clean beauty market has grown from its roots and luxury

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Speaker 1: and independent brands to take over shelves at mass market

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Speaker 1: retailers like Target, and it's forecast to expand to fifteen

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Speaker 1: point three billion dollars by twenty twenty eight. But just

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Speaker 1: what is a clean beauty product? That's the question that's

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Speaker 1: driving consumer led class actions against and target and raising

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Speaker 1: the legal risk for companies trying to capitalize on the

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Speaker 1: demand for clean beauty. Joining me is Sean Collins, an

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Speaker 1: attorney at Straddling. He advises companies on consumer litigation. What

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Speaker 1: is a clean beauty product? Are there any parameters the

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Speaker 1: public can rely on?

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Speaker 5: No?

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Speaker 6: There are, And that's probably the most frustrating part about it.

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Speaker 6: And this is not abnormal. I mean, the FTC and

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Speaker 6: the regulatory bodies are always five to ten years behind

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Speaker 6: where the marketplace is. But you know that is everybody's

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Speaker 6: great frustration is that there is no legal definition for beauty.

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Speaker 6: And so what the FTC does, in the absence of Congress,

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Speaker 6: which is the body that is responsible for coming up

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Speaker 6: with the definition of what beauty is, in the absence

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Speaker 6: of Congress, making a decision of passing a ball that

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Speaker 6: says this is how we're going to define a clean

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Speaker 6: beauty product. The FTC releases what they call guidelines, so

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Speaker 6: you'll see if you google it, FTC guidance on everything

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Speaker 6: will come up. FTC guidance on what it means to

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Speaker 6: be to have a free product, FTC guidance on what

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Speaker 6: it means to have a clean beauty product, and that

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Speaker 6: guidance is not law. What they are trying to do

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Speaker 6: is they are trying to create guardrails or boundaries that

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Speaker 6: kind of give guidance to the skincare and beauty product

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Speaker 6: lines out there in the world, so that they at

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Speaker 6: least have an idea of what is permissible and what's

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Speaker 6: not permissible. But it's not very helpful because if you're

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Speaker 6: a skincare cosmetics company and you're kind of flying blind,

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Speaker 6: you're just really kind of crossing your fingers and hoping

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Speaker 6: that you don't do anything that will get the FTC's

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Speaker 6: attention or maybe a state attorney general's attention.

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Speaker 1: There are now consumer led class action lawsuits. Tell us

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Speaker 1: a little bit about the lawsuit against Sephora.

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Speaker 6: The reality of lawsuit against the four and the reason

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Speaker 6: why you're seeing so many plaintiffs attorneys go after them

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Speaker 6: is it's like anything in life, tall trees attract the

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Speaker 6: most way. So Sephora is one of the most recognized

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Speaker 6: beauty and skincare companies in the world. You know, you

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Speaker 6: walk into any mall and even online they have huge

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Speaker 6: e commerce. It's one of the things that come to

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Speaker 6: mind when you know, if you ask a consumer what

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Speaker 6: do you think of when you think of beauty products,

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Speaker 6: you know there's going to be certain brands that come

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Speaker 6: to mind, Loreal, Thephora, et cetera. And so Plant's attorneys

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Speaker 6: know that, and they focus a lot on the clean

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Speaker 6: beauty claims that Sephora is making. I guarantee you Sephora

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Speaker 6: has very competent, very capable attorneys that are working for them,

435
00:22:35,520 --> 00:22:39,160
Speaker 6: and they're probably working with outside council as well to say, hey,

436
00:22:39,600 --> 00:22:42,159
Speaker 6: what can or can we not say? What can we

437
00:22:42,200 --> 00:22:46,640
Speaker 6: put on our labels to try to capitalize on consumers

438
00:22:46,720 --> 00:22:49,840
Speaker 6: demand for clean beauty products. And what they're doing is

439
00:22:49,960 --> 00:22:53,320
Speaker 6: they're reading the FTC guidance saying the FTC says we

440
00:22:53,400 --> 00:22:56,800
Speaker 6: can do this, But like I say, the FTC guidance

441
00:22:56,960 --> 00:23:00,359
Speaker 6: is not law. And so you know, I still bad

442
00:23:00,760 --> 00:23:04,240
Speaker 6: for the companies because the companies I know are spending

443
00:23:04,320 --> 00:23:07,600
Speaker 6: lots of money and making a concerted effort to comply

444
00:23:08,400 --> 00:23:11,359
Speaker 6: with what we all think the definition of a clean

445
00:23:11,359 --> 00:23:14,760
Speaker 6: beauty product is. And so to answer your question directly

446
00:23:14,800 --> 00:23:17,520
Speaker 6: with this, to fore a lawsuit, Planet's attorneys are coming

447
00:23:17,560 --> 00:23:19,280
Speaker 6: after them and saying, you know, this is what the

448
00:23:19,320 --> 00:23:22,400
Speaker 6: FTC guidance says, and you didn't do that, therefore you're

449
00:23:22,440 --> 00:23:23,440
Speaker 6: in violation.

450
00:23:23,119 --> 00:23:23,720
Speaker 3: Of the law.

451
00:23:24,160 --> 00:23:26,280
Speaker 6: Now what is the law. The law is Section five

452
00:23:26,320 --> 00:23:30,240
Speaker 6: of the FTC Act, which is very broad and vague

453
00:23:30,640 --> 00:23:34,480
Speaker 6: and amorphous. It says you cannot advertise a product in

454
00:23:34,520 --> 00:23:38,600
Speaker 6: an unfair, deceptive, or misleading manner. And so the question becomes, well,

455
00:23:38,600 --> 00:23:41,080
Speaker 6: what does that mean? What is unfair, what is deceptive?

456
00:23:41,119 --> 00:23:44,080
Speaker 6: What is misleading? The FTC views it as well, if

457
00:23:44,119 --> 00:23:46,960
Speaker 6: a consumer is looking at your label and they don't

458
00:23:47,000 --> 00:23:49,439
Speaker 6: quite understand what you're saying to them on that label,

459
00:23:49,560 --> 00:23:53,440
Speaker 6: that's unfair, deceptives, leading, and Plantu's attorneys are bringing these lawsuits.

460
00:23:53,520 --> 00:23:56,560
Speaker 6: What they're probably doing is they're probably going online and

461
00:23:56,640 --> 00:23:59,879
Speaker 6: looking at the BBB complaints Better Business Bureau complaints, and

462
00:24:00,119 --> 00:24:02,439
Speaker 6: so if they see a consumer complaining about, well, I

463
00:24:02,440 --> 00:24:04,880
Speaker 6: bought a product from Sephora and they said it's one

464
00:24:04,920 --> 00:24:09,120
Speaker 6: hundred percent natural or it's clean, you know, they're saying, well,

465
00:24:09,160 --> 00:24:11,840
Speaker 6: I looked at it and there's this ingredient that's prohibited

466
00:24:11,840 --> 00:24:14,520
Speaker 6: in the state of California. Therefore it's not clean. That's

467
00:24:14,600 --> 00:24:16,680
Speaker 6: kind of the impetus for these lawsuits like the one

468
00:24:16,680 --> 00:24:17,639
Speaker 6: you're seeing against thee for.

469
00:24:18,280 --> 00:24:22,639
Speaker 1: What I was wondering is the Sephora lawsuit alleges that

470
00:24:22,720 --> 00:24:25,679
Speaker 1: the ingredients and its clean products don't match up with

471
00:24:25,800 --> 00:24:30,720
Speaker 1: consumer expectations. So who or what is going to determine

472
00:24:30,800 --> 00:24:34,200
Speaker 1: what consumer expectations are polling?

473
00:24:34,840 --> 00:24:37,280
Speaker 6: That's a great question, and that's it's exactly what I'm

474
00:24:37,320 --> 00:24:40,639
Speaker 6: talking about. That's what these Planet's attorneys do. They say, well,

475
00:24:40,840 --> 00:24:43,960
Speaker 6: the ingredients that you actually listed on your product don't

476
00:24:43,960 --> 00:24:47,040
Speaker 6: match up with consumers expectations. So the question becomes, well,

477
00:24:47,200 --> 00:24:50,760
Speaker 6: what consumer are we talking about? Now? The law this

478
00:24:50,800 --> 00:24:53,800
Speaker 6: is one one area where there is crystal clear law,

479
00:24:53,880 --> 00:24:56,159
Speaker 6: so there's law on the books. The law says that

480
00:24:56,280 --> 00:24:59,359
Speaker 6: it's the reasonable consumer. So then that begs the question

481
00:24:59,400 --> 00:25:02,200
Speaker 6: of a well who the reasonable consumer? Sean the reasonable

482
00:25:02,240 --> 00:25:05,560
Speaker 6: consumer is June the reasonable consumer? We don't know the

483
00:25:05,640 --> 00:25:09,040
Speaker 6: reasonable consumer. I always tell my clients, and an abundance

484
00:25:09,040 --> 00:25:12,520
Speaker 6: of caution is the lowest common denominator. So I tell

485
00:25:12,520 --> 00:25:15,920
Speaker 6: my clients. When you're putting together, you're advertising marketing, you're

486
00:25:16,000 --> 00:25:18,959
Speaker 6: labeling a product as a clean, all natural beauty product,

487
00:25:19,080 --> 00:25:21,840
Speaker 6: you have to assume that you are dealing with the

488
00:25:21,960 --> 00:25:25,359
Speaker 6: ninety five year old grandma whose eyes are filming. Like

489
00:25:25,400 --> 00:25:28,119
Speaker 6: I say that, and like my clients always laugh, and

490
00:25:28,280 --> 00:25:30,639
Speaker 6: you know, look, I am saying it in jest to

491
00:25:30,720 --> 00:25:32,800
Speaker 6: a certain extent, but I'm I think one hundred percent

492
00:25:32,920 --> 00:25:36,119
Speaker 6: honest with them because the reality of the world we

493
00:25:36,160 --> 00:25:38,600
Speaker 6: live in is there's always a Planet's attorney out there

494
00:25:38,640 --> 00:25:40,680
Speaker 6: that's looking to make a box and if they find

495
00:25:40,800 --> 00:25:44,440
Speaker 6: ninety five year old grandma that has bad eyesight, they're

496
00:25:44,440 --> 00:25:46,800
Speaker 6: going to say, well, I bet there's about one hundred

497
00:25:47,000 --> 00:25:49,920
Speaker 6: or more other grandmas just like her out there, And

498
00:25:50,000 --> 00:25:52,320
Speaker 6: that's the consumer that you should have been thinking about

499
00:25:52,320 --> 00:25:55,200
Speaker 6: when you put that label together, and you mislet them. Therefore,

500
00:25:55,200 --> 00:25:58,800
Speaker 6: I'm bringing this lawsuit again. I think that's incredibly unfair.

501
00:25:58,840 --> 00:26:02,040
Speaker 6: I actually think those of lawsuits hurt the consumer more

502
00:26:02,080 --> 00:26:04,440
Speaker 6: than help the consumer. What it does is it lines

503
00:26:04,480 --> 00:26:08,040
Speaker 6: the pockets of Planet's attorneys to the detriment of the consumer.

504
00:26:08,080 --> 00:26:10,600
Speaker 6: So it's very frustrating for me, but that's, unfortunately, is

505
00:26:10,640 --> 00:26:11,960
Speaker 6: the world that we live in right now.

506
00:26:12,440 --> 00:26:15,640
Speaker 1: So explain what you tell your clients about. You know,

507
00:26:15,760 --> 00:26:19,160
Speaker 1: where to put the claims like clean and the font.

508
00:26:19,320 --> 00:26:22,200
Speaker 6: So I always tell my clients that, especially if you're

509
00:26:22,200 --> 00:26:25,800
Speaker 6: going to make that word clean or all natural, you know,

510
00:26:25,840 --> 00:26:28,280
Speaker 6: if you're going to make it very bold and prominent,

511
00:26:28,640 --> 00:26:31,480
Speaker 6: which look, that's what everybody wants to do right now

512
00:26:31,520 --> 00:26:34,879
Speaker 6: because the market research demands that, you know, let's not

513
00:26:34,960 --> 00:26:39,719
Speaker 6: get ourselves. The clean beauty products industry is a multi

514
00:26:39,760 --> 00:26:43,080
Speaker 6: billion dollar industry right now and growing because what market

515
00:26:43,119 --> 00:26:46,400
Speaker 6: research suggests is especially younger folks, so you're talking about

516
00:26:46,440 --> 00:26:49,880
Speaker 6: the gen Z's, I'd say millennials as well, but even

517
00:26:49,920 --> 00:26:52,880
Speaker 6: younger than that gen zs eighteen to twenty eight, they

518
00:26:53,080 --> 00:26:56,760
Speaker 6: really care about whether or not their products are ethically sourced.

519
00:26:57,000 --> 00:26:59,080
Speaker 6: They care about the environment. You know, my ten year

520
00:26:59,119 --> 00:27:01,800
Speaker 6: old sons always talking about the environment, making sure we're

521
00:27:01,840 --> 00:27:05,720
Speaker 6: taking good care of your which I love, but extrapolate

522
00:27:05,800 --> 00:27:08,760
Speaker 6: that into their consumption. They want to see that the

523
00:27:08,800 --> 00:27:12,680
Speaker 6: products that they're associating themselves with also care about the environment.

524
00:27:13,000 --> 00:27:16,360
Speaker 6: Companies realize that, and that's why it's become such a

525
00:27:16,400 --> 00:27:20,399
Speaker 6: big deal to put the word clean or all natural

526
00:27:20,400 --> 00:27:23,960
Speaker 6: on your product. So that being said, with that mindset,

527
00:27:24,440 --> 00:27:27,359
Speaker 6: I always convey to my clients that the reality of

528
00:27:27,400 --> 00:27:30,040
Speaker 6: the situation is that one of the things that's most

529
00:27:30,160 --> 00:27:32,879
Speaker 6: likely to make a young person at eighteen to thirty

530
00:27:32,880 --> 00:27:35,600
Speaker 6: eight year old person pick up your product is whether

531
00:27:35,720 --> 00:27:38,119
Speaker 6: or not if they clean or all natural products, and

532
00:27:38,160 --> 00:27:40,440
Speaker 6: so clearly you want to promote that on your product.

533
00:27:40,720 --> 00:27:43,480
Speaker 6: So I tell them, absolutely you can put the word

534
00:27:43,520 --> 00:27:46,960
Speaker 6: clean or all natural, but if you know, especially here

535
00:27:46,960 --> 00:27:50,800
Speaker 6: in California. So California is probably the most aggressive when

536
00:27:50,840 --> 00:27:55,400
Speaker 6: it comes to consumer protection. California has a long list

537
00:27:55,440 --> 00:27:57,720
Speaker 6: of products. We have Prop sixty five, you know where

538
00:27:57,760 --> 00:28:00,080
Speaker 6: you have to give warnings if we have certain products

539
00:28:00,200 --> 00:28:02,160
Speaker 6: or certain chemicals or ingredients.

540
00:28:01,840 --> 00:28:02,399
Speaker 1: In your product.

541
00:28:02,840 --> 00:28:05,120
Speaker 6: So in a state like California, which is a very

542
00:28:05,119 --> 00:28:07,760
Speaker 6: big marketplace. We got thirty nine million people that live

543
00:28:07,760 --> 00:28:10,159
Speaker 6: in state of California, the fourth largest economy in the

544
00:28:10,200 --> 00:28:13,479
Speaker 6: world if we were a country. Clearly, if you are

545
00:28:13,520 --> 00:28:15,840
Speaker 6: a company, you want to advertise your products in this

546
00:28:15,960 --> 00:28:18,919
Speaker 6: state is very big marketplace. I tell my clients, if

547
00:28:18,920 --> 00:28:21,800
Speaker 6: you're advertising here in California and you're going to use

548
00:28:21,840 --> 00:28:24,399
Speaker 6: that word clean or all natural, and you know that

549
00:28:24,480 --> 00:28:29,200
Speaker 6: there might be an ingredient or more that could potentially

550
00:28:29,520 --> 00:28:31,879
Speaker 6: not be classified as clean or all natural by the

551
00:28:31,920 --> 00:28:34,359
Speaker 6: California Attorney General, you need that to do to one

552
00:28:34,440 --> 00:28:36,159
Speaker 6: or two things you have. They need a hedge with

553
00:28:36,280 --> 00:28:38,840
Speaker 6: your language. Meaning most people like to say one hundred

554
00:28:38,840 --> 00:28:41,280
Speaker 6: percent natural. I always tell them, well, if it's not

555
00:28:41,440 --> 00:28:46,200
Speaker 6: one hundred percent natural, you could say mostly natural, or

556
00:28:46,840 --> 00:28:48,880
Speaker 6: you know, something to that effect. And obviously, you know,

557
00:28:48,920 --> 00:28:51,800
Speaker 6: the clients don't like that, especially the advertising department, because

558
00:28:51,800 --> 00:28:54,760
Speaker 6: they're like, no, we want to use all natural. And

559
00:28:54,800 --> 00:28:56,240
Speaker 6: I say, look, I'm not going to tell you that

560
00:28:56,320 --> 00:28:59,520
Speaker 6: you can't use all natural, but if you don't put

561
00:28:59,520 --> 00:29:03,080
Speaker 6: an ash next to it or soften that language a

562
00:29:03,080 --> 00:29:06,000
Speaker 6: little bit, there is the potential that a planet attorney

563
00:29:06,040 --> 00:29:06,680
Speaker 6: could come after you.

564
00:29:07,280 --> 00:29:10,920
Speaker 1: Do these suits resemble the green washing suits? Is there

565
00:29:10,960 --> 00:29:13,280
Speaker 1: anything that can be learned from those suits?

566
00:29:14,240 --> 00:29:18,400
Speaker 6: Yes, they absolutely resemble the green washing suit. I mean,

567
00:29:18,440 --> 00:29:21,080
Speaker 6: they're pretty much one and the same. It's just that

568
00:29:21,160 --> 00:29:25,840
Speaker 6: the clean beauty ones are obviously more focused on the

569
00:29:25,880 --> 00:29:29,320
Speaker 6: skincare and aesthetics industry and they're more focused on that

570
00:29:29,560 --> 00:29:32,960
Speaker 6: in particular, but they're pretty much the same. They're insinuating

571
00:29:33,080 --> 00:29:37,640
Speaker 6: that a company is trying to capitalize on the consumer's concerns.

572
00:29:37,720 --> 00:29:41,200
Speaker 6: So in the context of greenwashing, they're basically saying, you,

573
00:29:41,480 --> 00:29:44,960
Speaker 6: as a company, are trying to capitalize on the consumer's

574
00:29:45,280 --> 00:29:49,640
Speaker 6: concern about ESG. You recognize that the marketplace and the

575
00:29:49,720 --> 00:29:54,480
Speaker 6: consumers in the marketplace are very worried about the environment, sustainability, etc.

576
00:29:55,200 --> 00:29:57,880
Speaker 6: And you are trying to advertise your product in a

577
00:29:57,960 --> 00:30:00,480
Speaker 6: manner whereby you are trying to align your with the

578
00:30:00,760 --> 00:30:04,400
Speaker 6: ESG movement. So pivot over to the skincare or the

579
00:30:04,400 --> 00:30:08,160
Speaker 6: aesthetics world. They're saying, you, as a skincare company, are

580
00:30:08,160 --> 00:30:11,840
Speaker 6: trying to align yourself with the clean beauty movement and

581
00:30:11,960 --> 00:30:14,840
Speaker 6: you are this is what the FTC would say, you

582
00:30:14,920 --> 00:30:19,160
Speaker 6: are misrepresenting the cleanliness or the all naturalness of your

583
00:30:19,200 --> 00:30:22,680
Speaker 6: product for purposes of trying to capitalize on this multi

584
00:30:22,720 --> 00:30:23,920
Speaker 6: billion dollar industry.

585
00:30:24,160 --> 00:30:26,880
Speaker 1: I mean, do you think that these are lawsuits that

586
00:30:27,320 --> 00:30:29,320
Speaker 1: are going to get thrown out at the motion to

587
00:30:29,360 --> 00:30:30,440
Speaker 1: dismiss stage.

588
00:30:30,840 --> 00:30:31,040
Speaker 6: Yes?

589
00:30:31,200 --> 00:30:31,520
Speaker 3: I do.

590
00:30:31,680 --> 00:30:34,320
Speaker 6: And that's that's the frustrating part is you know, if

591
00:30:34,360 --> 00:30:37,800
Speaker 6: you're a company, there's certain companies that are startup. You know,

592
00:30:37,840 --> 00:30:41,040
Speaker 6: I have two or three clients that they're a one

593
00:30:41,120 --> 00:30:43,320
Speaker 6: or two man shop and they're like, you know what,

594
00:30:43,400 --> 00:30:45,920
Speaker 6: I wanted to create a skincare product that spoke to

595
00:30:46,000 --> 00:30:49,560
Speaker 6: me and who I am, and I created this product

596
00:30:49,720 --> 00:30:52,440
Speaker 6: and now they're getting hit with these lawsuits and look,

597
00:30:52,440 --> 00:30:55,240
Speaker 6: it's not cheap to defend against the motion to dismiss.

598
00:30:55,240 --> 00:30:58,680
Speaker 6: And Planet's attorneys know that I call these lawsuits shakedowns

599
00:30:58,760 --> 00:31:01,920
Speaker 6: because that's effectively they are. They recognize that if I

600
00:31:02,040 --> 00:31:05,880
Speaker 6: file this lawsuit in California, if I bring this CLRO claim,

601
00:31:05,960 --> 00:31:08,720
Speaker 6: if I bring this UCL claim or this false advertising

602
00:31:08,800 --> 00:31:12,000
Speaker 6: law claim, this one man or two man show, they

603
00:31:12,040 --> 00:31:15,400
Speaker 6: don't have the money to pay Sean or straddling yaka

604
00:31:15,480 --> 00:31:19,040
Speaker 6: Carlson Raw twenty thousand dollars to file emotion to dismiss.

605
00:31:19,560 --> 00:31:22,400
Speaker 6: So I'll just basically tell them settle with me for

606
00:31:22,440 --> 00:31:24,320
Speaker 6: ten or fifteen thousand, and we'll call.

607
00:31:24,200 --> 00:31:24,600
Speaker 2: It a day.

608
00:31:24,720 --> 00:31:26,600
Speaker 6: And look, the reality of it is is for my

609
00:31:26,720 --> 00:31:29,440
Speaker 6: clients where they're the one or two man shop, that's

610
00:31:29,480 --> 00:31:31,320
Speaker 6: a good business decision. If they can get out of

611
00:31:31,680 --> 00:31:33,520
Speaker 6: five or ten thousand dollars, then I'd have to pay

612
00:31:33,520 --> 00:31:36,120
Speaker 6: me twenty thousand dollars to file emotion to dismiss. That's

613
00:31:36,120 --> 00:31:38,760
Speaker 6: a good business decision for them. Now for my larger

614
00:31:38,800 --> 00:31:43,400
Speaker 6: clients who have the resources, we absolutely fight these because,

615
00:31:43,440 --> 00:31:46,040
Speaker 6: like I say, they're shakedown and so you know, I

616
00:31:46,040 --> 00:31:49,000
Speaker 6: don't want toot my own horn, but me and my team,

617
00:31:49,120 --> 00:31:51,320
Speaker 6: we have a great record of killing these on motion

618
00:31:51,440 --> 00:31:54,160
Speaker 6: to dismiss for all the reasons that I've stated earlier.

619
00:31:54,640 --> 00:31:57,600
Speaker 6: You know, these lawsuits are being brought based on, well, hey,

620
00:31:57,680 --> 00:32:01,120
Speaker 6: you didn't do what the FTC just said it. And

621
00:32:01,280 --> 00:32:04,760
Speaker 6: obviously the crux of our motion to dismiss is that's

622
00:32:04,760 --> 00:32:07,920
Speaker 6: a guidance that's not law. And you know, we were

623
00:32:08,080 --> 00:32:11,560
Speaker 6: very diligent and made a beyond good faith effort to

624
00:32:11,640 --> 00:32:14,560
Speaker 6: comply with the STC's guidance. Therefore, we are not in

625
00:32:14,680 --> 00:32:17,160
Speaker 6: violation of the law, and we're moving to dismiss all

626
00:32:17,200 --> 00:32:17,880
Speaker 6: of your clients.

627
00:32:18,120 --> 00:32:22,840
Speaker 1: Some companies are taking the initiative in telling their customers

628
00:32:23,240 --> 00:32:26,520
Speaker 1: what clean means. So Goop did it? Does that save

629
00:32:26,600 --> 00:32:29,440
Speaker 1: them from lawsuits? If they say this is what clean

630
00:32:29,600 --> 00:32:30,280
Speaker 1: means to.

631
00:32:30,240 --> 00:32:33,000
Speaker 6: Us, you know what it does? And I love that,

632
00:32:33,120 --> 00:32:35,440
Speaker 6: And I think that everything that Goop is doing is

633
00:32:35,440 --> 00:32:38,560
Speaker 6: phenomenal because they're being proactive. You know, so, in the

634
00:32:38,640 --> 00:32:42,400
Speaker 6: absence of the federal government stepping up and saying this

635
00:32:42,520 --> 00:32:45,320
Speaker 6: is the law, this is what the standard is, the

636
00:32:45,360 --> 00:32:48,680
Speaker 6: marketplace effectively has to create the standard. So keep in mind,

637
00:32:48,720 --> 00:32:52,320
Speaker 6: like I said earlier, the reasonable consumer can be anything.

638
00:32:52,440 --> 00:32:54,920
Speaker 6: It's kind of a MorphOS. And so if a company

639
00:32:54,960 --> 00:32:57,880
Speaker 6: comes out and says, you know what, the federal government

640
00:32:57,920 --> 00:33:01,240
Speaker 6: hasn't created a standard, they haven't created guidance, but this

641
00:33:01,280 --> 00:33:04,040
Speaker 6: is our standard. What they're saying is is when I

642
00:33:04,120 --> 00:33:07,400
Speaker 6: say clean, this is what I mean. So before you

643
00:33:07,480 --> 00:33:10,680
Speaker 6: purchase my product, consumer understand that this is what I

644
00:33:10,760 --> 00:33:12,840
Speaker 6: mean when I put the word clean on it. And

645
00:33:12,880 --> 00:33:16,160
Speaker 6: if you don't agree with my definition, it's your choice

646
00:33:16,160 --> 00:33:18,040
Speaker 6: whether or not you want to buy this product or not.

647
00:33:18,560 --> 00:33:20,760
Speaker 6: I love that. I think Goop and the other companies

648
00:33:20,800 --> 00:33:23,680
Speaker 6: that are doing that are doing a phenomenal job. And

649
00:33:24,040 --> 00:33:26,680
Speaker 6: that's exactly what I recommend to all of my clients.

650
00:33:26,720 --> 00:33:29,760
Speaker 1: What about a disclaimer, So disclaimers are good.

651
00:33:29,800 --> 00:33:32,240
Speaker 6: Disclaimers are good. The one caveat I would say about

652
00:33:32,240 --> 00:33:35,320
Speaker 6: a disclaimer. One thing I've been talking quite a bit about,

653
00:33:35,400 --> 00:33:37,320
Speaker 6: you know what the law says and the guidance. So

654
00:33:37,360 --> 00:33:40,240
Speaker 6: I talked about the reasonable consumer. Another bright line rule

655
00:33:40,400 --> 00:33:43,600
Speaker 6: in the advertising and marketing world is that when you

656
00:33:43,640 --> 00:33:47,280
Speaker 6: are making claims in connection with your product, especially if

657
00:33:47,280 --> 00:33:50,600
Speaker 6: it's a material claim. So a material claim meaning this

658
00:33:50,760 --> 00:33:54,400
Speaker 6: claim is likely to lead to the consumer purchasing my product.

659
00:33:55,000 --> 00:33:58,160
Speaker 6: So clearly, in this context, the word clean or all

660
00:33:58,280 --> 00:34:01,760
Speaker 6: natural would be a material term. If you are going

661
00:34:01,840 --> 00:34:05,080
Speaker 6: to use those types of terms, you need to make

662
00:34:05,200 --> 00:34:08,120
Speaker 6: that a disclosure in what they call a clear and

663
00:34:08,239 --> 00:34:11,719
Speaker 6: conspicuous manner. That is the standard, meaning it has to

664
00:34:11,760 --> 00:34:14,719
Speaker 6: be so prominent for the consumer that they can't miss it.

665
00:34:15,160 --> 00:34:17,200
Speaker 6: So to answer your question, if you're going to give

666
00:34:17,200 --> 00:34:20,120
Speaker 6: a disclaimer, you heard me say asterix earlier. So a

667
00:34:20,160 --> 00:34:22,239
Speaker 6: lot of the times, if a customer has like a

668
00:34:22,239 --> 00:34:25,400
Speaker 6: product label on a small bottle or container, and you

669
00:34:25,400 --> 00:34:27,200
Speaker 6: don't have a lot of space to work with, you

670
00:34:27,200 --> 00:34:30,160
Speaker 6: can put an asterisk next to the word clean, meaning

671
00:34:30,239 --> 00:34:33,759
Speaker 6: this asterisk is the universal language. But there's a disclaimer

672
00:34:33,840 --> 00:34:36,440
Speaker 6: connected with this word clean. So if you're going to

673
00:34:36,480 --> 00:34:39,239
Speaker 6: put that disclaimer on there, it also has to be

674
00:34:39,320 --> 00:34:43,400
Speaker 6: displayed prominently, meaning the consumer doesn't have to go looking

675
00:34:43,560 --> 00:34:46,279
Speaker 6: for it. So what I recommend to the client is is,

676
00:34:46,360 --> 00:34:48,359
Speaker 6: if you're going to put a disclaimer, if you're going

677
00:34:48,400 --> 00:34:50,800
Speaker 6: to have an asterisk, it needs to be a close

678
00:34:50,920 --> 00:34:55,080
Speaker 6: proximity to the word clean. That usually means within the

679
00:34:55,120 --> 00:34:57,760
Speaker 6: line of sight. So if I'm looking at a product

680
00:34:57,840 --> 00:35:00,719
Speaker 6: label or container and I see the word clean, I

681
00:35:00,760 --> 00:35:04,080
Speaker 6: shouldn't have to turn the product over to read the disclaimer.

682
00:35:04,360 --> 00:35:06,600
Speaker 6: I shouldn't have to turn the product to its backside,

683
00:35:06,640 --> 00:35:08,600
Speaker 6: or I shouldn't have to open the box to read

684
00:35:08,640 --> 00:35:11,400
Speaker 6: the disclaimer. The disclaimer should be right there in the

685
00:35:11,400 --> 00:35:13,640
Speaker 6: line of sight, with the word clean or with the

686
00:35:13,680 --> 00:35:14,680
Speaker 6: words all natural.

687
00:35:15,120 --> 00:35:18,279
Speaker 1: Do you expect more of these consumer class action lawsuits?

688
00:35:18,440 --> 00:35:21,680
Speaker 6: This is going to grow as the market for clean

689
00:35:21,719 --> 00:35:24,319
Speaker 6: beauty products grows, and like I say, right now, it's

690
00:35:24,360 --> 00:35:27,880
Speaker 6: a multi billion dollar industry and growing. The last numbers

691
00:35:27,920 --> 00:35:30,520
Speaker 6: I read, you know, the addressable market for clean beauty

692
00:35:30,600 --> 00:35:32,600
Speaker 6: is in the two to five billion dollar range, and

693
00:35:32,840 --> 00:35:35,680
Speaker 6: it could go upwards to twenty billion or more, because,

694
00:35:35,719 --> 00:35:38,600
Speaker 6: like I say, the younger generations, it's what they care about.

695
00:35:38,600 --> 00:35:43,560
Speaker 6: They're very, very, very very concerned about aligning themselves with

696
00:35:43,680 --> 00:35:47,480
Speaker 6: products that are ethically sourced. And companies know that and

697
00:35:47,480 --> 00:35:50,880
Speaker 6: they want to capitalize on that market. And because companies

698
00:35:50,960 --> 00:35:54,799
Speaker 6: are trying to capitalize on that marketplace PLANTUS attorneys and

699
00:35:54,880 --> 00:35:58,920
Speaker 6: regulators are paying close attention. My thought is that follow

700
00:35:58,960 --> 00:36:01,800
Speaker 6: the guidance of you know, do exactly what the goops

701
00:36:01,840 --> 00:36:03,719
Speaker 6: of the world are doing. I think what they're doing

702
00:36:03,840 --> 00:36:06,440
Speaker 6: is phenomenal. In the absence of the federal government stepping

703
00:36:06,480 --> 00:36:09,680
Speaker 6: up and saying this is what clean means. Create your

704
00:36:09,719 --> 00:36:13,160
Speaker 6: own definition and make consumers aware of it so that

705
00:36:13,360 --> 00:36:15,640
Speaker 6: when they come back and say, I didn't know that

706
00:36:15,760 --> 00:36:17,799
Speaker 6: you had this in your product, you can say, hey,

707
00:36:18,360 --> 00:36:21,080
Speaker 6: I disclosed to you before you purchase my product that

708
00:36:21,280 --> 00:36:24,279
Speaker 6: this is how I'm defining clean, and I gave you

709
00:36:24,440 --> 00:36:27,600
Speaker 6: fair warning and notice that this is my definition. And

710
00:36:27,640 --> 00:36:30,560
Speaker 6: then you had the choice to decide whether or not

711
00:36:30,600 --> 00:36:32,440
Speaker 6: you wanted to align yourself with my product.

712
00:36:32,719 --> 00:36:35,120
Speaker 1: Thanks so much for being on the show, Sean. That's

713
00:36:35,160 --> 00:36:39,080
Speaker 1: Sean Collins, a shareholder at Straddling. And that's it for

714
00:36:39,120 --> 00:36:41,759
Speaker 1: this edition of The Bloomberg Law Show. Remember you can

715
00:36:41,800 --> 00:36:45,040
Speaker 1: always get the latest legal news on our Bloomberg Law Podcast.

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00:36:45,280 --> 00:36:48,319
Speaker 1: You can find them on Apple Podcasts, Spotify, and at

717
00:36:48,480 --> 00:36:53,520
Speaker 1: www dot Bloomberg dot com, slash podcast slash Law, and

718
00:36:53,600 --> 00:36:56,640
Speaker 1: remember to tune into The Bloomberg Law Show every weeknight

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00:36:56,760 --> 00:37:00,200
Speaker 1: at ten pm Wall Street Time. I'm Jim Grossa, and

720
00:37:00,280 --> 00:37:06,960
Speaker 1: you're listening to Bloomberg. Mm hmm