Posted on August 19, 2009 by Kaila Westerman, TKB Trading, LLC
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Recently I was contacted regarding the company 100% Pure and its patent pending for use of fruit, vegetable, flower and seed pigments for use in cosmetics.
The concern was that if 100% Pure succeeds in their patent then it will negatively affect all natural cosmetic companies.
The author requested that we call the examining attorney Tania Ashby at 571-270-1348 and that we write a formal complaint to the commissioner for patents
The Commissioner for Patents PO Box 1450 Alexandria, VA 22313-1450
OK, I have passed the word along, now here is what I have thought about this over the years.
1) The folks at 100% Pure are based here in the Bay Area and I have talked with them as well as sold product to them. In particular, the female founder has taken a mineral makeup class from me when I taught years ago at thenovastudio.com. This in itself doesn't mean anything but I wanted to let you know that the people behind 100% Pure are just people. In some ways they are small, independent natural businesses just like yours (if you have one), although perhaps better funded. They operate out of a 30,000 square foot warehouse in Oakland.
2) I always scratched my head over this patent, because the FDA regulates what color additives are approved for use in cosmetics and the list touted by 100% Pure aren't FDA approved. In my mind, 100% Pure was (is) in violation of the FDA regulations regarding color additives in cosmetics.
3) But lots of companies do use "fruit, vegetable, flower and seed pigments" in their products. For example, Aveda uses botanicals in its formula for Black Malva shampoo. But Black Malva is not on the FDA list of approved color additives. I think the reason they get away with this is because they add it as a "botanical additive" not as a "color additive". Typically, color additives are at the end of an ingredients list in the "may contain" section. I suspect that Black Malva is up there above the "may contain" designation and listed as a botanical. Botanical additives are not regulated by the FDA. This tricky little slippery slope has been used by all kinds of natural cosmetic manufacturers to insert natural coloring agents into their products. 4) So why the patent application by 100% Pure? After scratching my head for about a month, I finally sat down and read the the patent, quickly (patent application number 20060280762) . My read was that they are by-passing the FDA regulations for their current product line by claiming that they are not coloring the cosmetic, they are coloring the body, the fact that there is a cosmetic in between is kind of an "afterthought". For example, cherry juice stains the lips. Yes, there is some waxy oil blend (read: lipstick) which is used to apply it to the lips, but the cherry juice is not there to color the waxy oil blend, it is there to stain the skin of the lips. Maybe I am misunderstanding the patent application, but when I rephrased it that way at least I understood how they were getting around FDA regulations.
5) But let's say I'm wrong. Let's just say we all agree that "fruit, vegetable, flower and seed pigments" are not approved for use in cosmetics by the FDA. Let's say that 100% PUre is currently manufacturing in violation of FDA regulations by claiming that they use natural pigments to color their cosmetics -- pigments which are not on the approved list. Are people being harmed? Nope. Why is that? Because the ingredients are not inherently unsafe. They are not approved by the FDA simply because no one has no one has invested the money necessary to have them become FDA approved. Why would they when they have so many reliable analine dyes to use instead.
6. So, perhaps the folks at 100% Pure are pure genius. Even if natural pigments are not FDA approved I assume that this does not prevent you from filing a patent for the idea. And if you held a patent on the idea, funding for such FDA approval would easily follow because all of a sudden you would own something that everyone -- especially the big guys -- would be willing to license. As an example, perhaps the attorney for a patent-holding 100% Pure would argue that the ONLY reason the Black Malva is in the Aveda shampoo formula is because Black Malva is a dark pigment and it offers some natural darkening to the hair. It does not offer any other qualities (such as shine, or silkiness). Therefore the use of the Black Malva in the shampoo formula violates the patent and therefore Aveda must cease and desist and/or pay 100% Pure a license fee.
OK, lots of guessing, speculating and noodling in the above. I'm not telling you what the situation is, I'm throwing in my two cents. I'm sure there are some errors in my thought process and I welcome feedback. But if I'm right even 80%, I have to say, the folks at 100% Pure smarter than I originally thought.