Reformulation Thought for Today.

Yeah I'm sick of people whinging about reformulations. Anyone else?

It's a fascinating legal issue that I want to quiz a lawyer about. I found one lawyer's argument for why and how she could sue a perfume manufacturer over a reformulation, if she wanted. I'll try to find it and repost.

That would be great Zizanioides !

I see the word 'fraudulent' coming into my head re. reformulation.
( NB.It is important for customers and consumers to stand up for their rights . )

Ok, as a disclaimer I am not a lawyer and none of this is intended as legal advice, just the results of my slap dash research.

From Glorianna over at Perfumeoflife forums: http://www.perfumeoflife.org/lofiver...hp/t36077.html
"Thanks everyone. I'm going to write to the original retailer, alleging breach of contract (failure to comply with description given to goods ie not " Coco" as understood to a repeat consumer and copy to Chanel UK, French Head Office and request the comments be forwarded to Jacques Polge.

As a lawyer, I've always thought that there is potential for a legal challenge when a perfume is reformulated to the extent that it smells noticeably different from that expected by the consumer on the basis of a previous perfume issued under that name."

She might be on to something there but there is a simpler remedy; calling the company complaining and demanding a refund. Most of them seem to have a policy whereby you ship back the offending product and receive a refund or some sort of compensation. Now, whether they will honor your purchase if you bought through a third party is a different issue but I think it would work if you were very persistent and aggressive.

Are perfume companies committing fraud by selling you a reformulated perfume? Criminal fraud is probably a stretch and you would have a hard time getting any judge to agree with this as it could possibly destroy a multi-billion dollar industry but there are other civil complaints that might be valid. False advertising would be a good place to startFrom the Lanham Act)

"(1)
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which--

(A)
is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B)
in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act." (15 USC 1125)

The idea would be that Chanel (or whoever) is misrepresenting their product by changing it's fundamental consistency while still labeling it "Chanel No. 5". At no point does Chanel ever hint in their advertisements that Chanel No.5 has been changed or is anything other than what it was 80 years ago or that it's not what you bought 3 years ago. Is that actionable? No idea, the world of commercial law is dizzying and I'm not trained in it! But there are a number of other laws that allow a customer to bring a suit for damages if the product isn't fit for the intended purpose (smelling like the perfume it used to be) etc. A small claims suit for breach of contract, as Glorianna suggests, might be a good bet.

When people are busted for selling counterfeit perfumes their crime is in misrepresenting the product and engaging in fraud. The bizarre part is that the counterfeiters could have created a perfect copy using the exact same ingredients and they would still be guilty of fraud if they labeled it to look like it was produced by a designer label etc. No one is testing these perfumes to see how similar they are to the real things; it's immaterial. The perfumers, on the other hand, can sell water packaged as your favorite perfume and claim that nothing is wrong. I think perfume has many legally murky and quixotic areas that haven't been fully explored, probably because no one cares enough to start suing over it. I'll edit this post to be more accurate after some coffee

Zizanioides - thank you for posting this very informative piece. I read it with great interest- mispresentation, false advertsing ,fraud. I agree perfume is an area most people have never thought of - in legal terms.
Indirectly and ironically, through their own doing, the IFRA and industry have made consumers aware of laws that could be used against them for the above - false advertising ,etc.

I like this thread. An analogy that comes to mind: if Chanel Cashmere were a brand recognized for fine cashmere sweaters, and now they were called the same but cheap acrylic, isn't that the same kind of fraud?

In my mind ,it is, Anya, otherwise it could be thought of as 'double standards' IMHO.

I would think so, Anya, but these things are far more intricate than I had imagined and it would hinge upon how much the company was actively leading you to believe the acrylic is cashmere. If they also labeled the acrylic "100% Cashmere" then that would definitely be false advertising but brand and trademark names seem to be given a lot of lee way. If a word has connotations of luxury or elegance (e.g., gold, silver, silk, etc.) companies will use them in brand or product names with zero relation to substances (Soy Silk, Herhsey's Gold, etc.) and that's ok as long as they aren't trying to trick you.

It's possible that perfume companies could be hit with some sort of false advertising/violation of contract lawsuits but unless someone were to devote the time and money to it (or digging up someone's attempt to), we won't know. Or maybe we will once we dig up a real lawyer on basenotes

LOL yep agree with you all on this one! C'mon let's sue someone!

I'm not whining about reformulations, but yes, isn't the consumer entitled even to sue, if he gets the "Yugo engine and fake leather seats" not just at the price of a Rolls-Royce, but, even more expensively, at the price of, metaphorically speaking, a Bugatti Veyron (since reformulated, cheaper ingredient doesn't necessarily mean a cheaper retail price)?

As Zizanoides mentioned, most fragrance companies do not claim their products contain a specific amount of any ingredient, so they wouldn't be defrauding people in this way. I do think people feel alienated by companies' lack of forthrightness regarding reformulations, though, and the internet helps them be more vocal about it.

I don't think there is much protection for consumers even if fragrance companies falsely promote their product's ingredients. Luca Turin once wryly observed that the non-existence of Gardenia absolute has not stopped a legion of companies claiming it in their fragrances (I think it was Gardenia absolute, a Google search reports that most Gardenia absolutes are synthetics and true absolute is very rare/not made).

Interesting article!

Very interesting thoughts. Estee Lauder/Aramis in the UK did have something on their website (not sure if it's still there - I haven't been on there for a while, but I might soon...) that mentioned reformulations and that if anyone was in any way dissatisfied with their purchase, then they (EL/Aramis) would give a full refund and the bonus option of a free alternative/replacement up to the same price, which I though was a really good idea.

EDIT - just had a quick check in between writing this and, whilst they still have a way for people to specifically complain about EL and Aramis fragrances, the refund bit has gone. Whether that's because, of pretty much ALL companies out there, Aramis reformulations tend to smell exactly the same as their original versions (the twice reformulated Devin and 900, and the new Gentlemen's Collection confirm this), I don't know.

I think EL/Aramis have proven time and time again that they actually listen to their customers - both Devin and 900's second (pre Gentlemen's Collection) reformulation apparently happened because the first reformulation altered the dry-downs and longevity, and it's hardly surprising that the Gentlemen's Collection is largely made up of Aramis faves (though quite what Life is doing in there, I don't know). I understand that EL have a similar track record with their cosmetics and are one of the few large cosmetic companies that have been quick to admit and rectify mistakes. A big thumbs up to both.

This isn't quite the right thread but I didn't feel like this deserved a new one.

I've been checking into IFRA procedure and funding, just to see where that led. Unfortunately, getting information on Swiss financial entities is tough. Surprise! :P Checking out the American centered branch, the RIFM, led to more information on their financial set up, which is entirely based on membership dues, adding up to about 9 million in 2008. Why does it matter? Top end membership dues are a small percentage of the company's total yearly sales. I can't find the IFRA's fee schedule but their website specifies voting members "dues determined by share of industry sales." This is interesting because:
"It is important to note that the voting rights assigned to these direct company members has been capped to a maximum 50% altogether of the voting rights in any IFRA General Assembly. This is to avoid a possible dominant position of a direct company member versus the traditional members of IFRA,the local and regional fragrance associations.. This maximum of 50% voting rights is important when one considers the rule that any decision of the IFRA General Assembly needs at least 75% of the total voting rights to be approved. Also, the composition of the IFRA Board of Directors has been slightly amended to allow a maximum of six directors representing the direct company members and to specify that the presidents or chairmen of FMA (Fragrance Materials Association of the United States), EFFA and RIFM would be members of the IFRA Board, which is consistent with past and current practice. " This is taken from the Januaruy 2008 newsletter.

From the IFRA Charter:The voting rights of the Ordinary Members are proportional to their share of the IFRA" (Appendix 3, Article 9).

So the interesting points are:
-it's "pay to play", with the biggest contributor controlling up to 50% of the votes of the General Assembly. The fact that this revision was included leaves open the possibility that someone had 75% of the vote share and could push through whatever they liked. Now you would need at least 2 members for a monopoly.
-the membership dues are set by a vote of the General Assembly (meaning large vote holders could conceivably drive people out depending on how much they will pay)
-to lead various other fragrance groups (most importantly the research branch of IFRA, RIFM) you have to be a paying IFRA member and be elected by the IFRA General Assembly to the Board of Directors; not surprisingly, a number of these directors are employed by large fragrance companies
-Givaudan, probably the largest market share holder, is estimated as having 19-25% of the relevant market (IFRA does not describe which market or how dues or calculated). Are companies allowed to pay more than their dues and increase their number of votes? If not, why pass a rule capping votes at 50% if the largest company doesn't even come close to that?

I'm not saying that this is some deep dark conspiracy by corporations seeking to destroy Mitsousko/devour your children/bring back New Coke but I find it troubling that a very important regulatory body (one that makes up 80-90% of the fragrance industry and who's rules have been adopted as law in various countries) can be controlled by the highest bidder. Privatized self regulation like this just lacks the transparency and accountability of traditional government oversight.

I think I just found a new passion for corporate structuring and public policy. I hope I can find a psychiatrist to treat it.

Have we got our very own Erin Brockovich in the house?!?!

Well done, Ziazanoides ! It could be that you are on the right track This makes assumed close links with EU administrators the more plausible. It could also be that looking into IFRA methods and mechanisms might point towards a giant cartel (rather than some monopoly), global of course, like the finance business. That's what I myself would concentrate on. Whether it's india, North and South America or Europe - the big five are already there, in strarge unamity, it seems.

I don't know how much the EU administrators and the IFRA communicate, I'm not up to date on the pertinent legislation etc. If you have any information or interesting links on the subject I would love to see them, if no other reason than to give me another interesting research distraction

There certainly are links between governmental regulation and IFRA standards (their website claims some sections of the European Cosmetics Directive were borrowed from their code of conduct, Brazil and Colombia have adopt the code as law as have some Asian nations) but I'd imagine that the real attraction for legislators is the convenience. By adopting the code into their regulations they are spared the expense and trouble of coming to their own conclusions on a subject without much public appeal. And that's my chief concern, that regulations are being voted on by private corporations and then stealthily adopted into law, giving certain companies an inordinate and globe spanning reach. If I were a corporation I would want nothing more than to be in charge of the regulations that shaped mine and my competitor's profit margins. In fact, I would want to have the regulator body right inside my main corporate office.

IFRA Head Office
Chemin de la Parfumerie 5
1214 Vernier, Geneva
Switzerland

Givaudan Corporate Headquarters
Chemin de la Parfumerie 5
1214 Vernier Geneva
Switzerland
(as listed on both organization's websites)

I know we aren't talking about pharmaceutical or weapons companies or other crucial industries but I find this possible piercing of the corporate veil into the public sphere disturbing. As more countries scramble to regulate new economic sectors, what could be more convenient than adopting the laws a helpful corporation has pre-packaged for you? If the EU does it (albeit not in the code's entirety), why would a nation with far more serious worries shoulder this burden of research and time? Who's to say if there isn't an equivalent organization like the IFRA for each industry?

I guess I might be happy that the Givauden-IFRA-EU connection is so public. This would be easy to use in any organized effort to oppose the EU or other governments from adopting IFRA rules.

I know that industry lobbyists 'help' the US Congress write every industry regulation. But which companies write which parts isn't so transparent.

Hmmm, I guess in terms of duped price ranges then yes It's unfair...A reduction of ingredients thus to be perceived as the *Same* Cologne [Sic] It's seriously absurd in my opinion, It is entirely intended by the company to scantily hide any apprehensions of reformulations...an outburst that needs to cried out!

Cheers and take care!

- Balava