YOU CAN STAND UNDER MY UMBRELLA: WEIGHING TRADE SECRET PROTECTION AGAINST THE NEED FOR GREATER TRANSPARENCY IN PERFUME AND FRAGRANCED PRODUCT LABELING
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Journal of Intellectual Property Law
Spring, 2008
Introduction
Most people are probably familiar with the infamous tagline question posed at the conclusion of Britney Spears' provocative "Curious" perfume commercial: "Do you dare?" Ironically, considering the significant restriction trade secret law currently places upon the federal government's ability to enforce its own regulations regarding perfume ingredients, the "Curious" tagline could not possibly ask a better question. But perhaps the tagline should be amended to ask, "Do you dare to even put this substance onto your body?"
The perfume and fragrance industry has a major presence in both the United States economy and the global economy at large. In 2007, the global fragrance industry launched 316 new perfume fragrances for women and eighty-nine new cologne fragrances for men. Women's fragrances alone generate global sales of $20 billion each year. Many celebrities within the entertainment industry have realized that releasing a fragrance is a lucrative venture and have decided to diversify their revenue streams and release their own signature scents. Several popular singers and entertainment moguls have each released their own fragrances, including Beyonce ("True Star"), Gwen Stefani ("L"), Sean "Diddy" Combs ("Unforgivable Woman"), and Mariah Carey ("M"). Athletes have likewise entered the fragrance market, with cologne and perfume releases from basketball legend Michael Jordan ("Jordan") and tennis star Maria Sharapova ("Maria Sharapova"). In fact, perfume is so popular that designer fashion line "Juicy Couture" has even developed a special line of cosmetics for dogs ("Juicy Crittoure"), which includes perfume ("Dog Pawfume"). The use of the name and likeness of celebrities and their children to market fragrances has even resulted in legal disputes. Recently, Angelina Jolie filed a note (which she subsequently dropped) with the United States Patent and Trademark Office (PTO) against Symine Salimpour, claiming that Salimpour's new perfume, entitled "Shiloh," was named after Jolie's daughter. Jolie's main contention was that Salimpour should not be allowed to use her daughter's name to market the perfume.
In addition to the trademark disputes over perfume, there has also been a recent backlash against the ingredients in fragrances. Extensive laboratory testing has shown that increasing numbers of toxic chemicals, several of which are suspected to cause liver and kidney damage, are frequently being included perfume. There is evidence that some of the chemicals within many fragrances may be linked to several health issues plaguing the American public health today, including eye and skin irritation, respiratory problems, allergies, headaches, reproductive health problems, severe asthmatic reactions, and even cancer. In July 2007, a Detroit, Michigan city government worker became upset with the negative impact that her co-workers' fragrances had on her health. She filed suit under the Americans with Disabilities Act (ADA) to have perfume banned from the workplace altogether. Similarly, in 2005, a top-rated Detroit radio DJ host *319 claiming that she was sickened by her co-worker's perfume received a $10.6 million verdict after alleging that she had been fired because she complained about her co-worker's perfume. During the civil trial, three doctors confirmed that the plaintiff did not have problems with natural smells, but rather with the chemical basis of the perfume. [FN19] The plaintiff claimed that she had suffered raw chemical burns to her airways and sinuses as a result of inhaling toxic chemicals in the perfume, and according to her doctor, she could have died as a result of continued exposure to the perfume chemicals.
Although the Food & Drug Administration (FDA) provides some regulatory guidelines that attempt to ensure the overall safety of perfumes, the agency is still seeking to promote a lofty goal with one hand tied behind its back. This is because perfume manufacturers are able to exploit a loophole that allows them to circumvent disclosure of hazardous substances under the guise of trade secret protection. Trade secret law essentially allows fragrance manufacturers to include toxic chemicals in their products by classifying the ingredients as "fragrance." The term fragrance describes an amalgam of ingredients (typically referred to as the "fragrance formula") that fragrance producers do not have to disclose to anyone by claiming the ingredients constitute trade secrets. Not only can fragrance companies avoid providing an exhaustive list of fragrance formula ingredients on the labels of their products, they also are not required to disclose them to regulatory agencies such as the FDA. Because companies are not required to disclose the individual ingredients that comprise their fragrance formulas they are able to include hazardous substances in their fragrance products without either the FDA or the consuming public knowing.
This Note explores the loopholes available to perfume manufacturers via FDA regulations that permit them to circumvent the disclosure of harmful substances found in their products by claiming trade secret protection. Part II of this Note examines the definition, history, and function of trade secret law, as well as arguments explaining its dangers. This Part will also survey some of the dangerous ingredients that are typically used in perfume, how federal regulations have affected the use of certain ingredients in perfume over time, and how trade secret law factors into the present regulation scheme. This Part of the Note concludes by discussing competing lines of precedent regarding whether disclosure of individual ingredients that comprise the fragrance formula should be considered a Fifth Amendment taking. Lastly, Part III of this Note argues that public policy demands that the trade secret disclosure loophole be scaled back substantially, if not completely eradicated, in an effort to protect the public from the long term effects of being exposed to the hazardous chemicals contained in fragrances. More specifically, this Part contends that removing perfume manufacturers from the protection of their trade secret umbrella and requiring disclosure of certain chemicals collectively listed as "fragrance" should not be considered a Fifth Amendment taking but rather viewed as a legitimate exercise of the government's police powers to protect the public.
