I am pleased to welcome a new writer on BrandWatch: Antoine de Brosses, lawyer at Lovells, specializing in food and cosmetics law. He is the author of a book on the labelling of food products and is preparing a second one on cosmetics. Welcome to BrandWatch!
Laws and regulations have bad press with regard to marketing: the lawyer and / or the one in charge of regulation compliance are sad gentlemen indeed, who say no to marvellous creators.
This negative view of the lawyer stems from a misunderstanding of his task, bad organization of the company, a misconception of his role by the lawyer himself, or all these at once. These relational difficulties perturb the time-line for marketing new products. They are, however, not impossible to resolve. Here are a few lines of thought.
1. Getting a better understanding of the functions of a lawyer
The lawyer's role is to protect the company and its executives against the risk of prosecution arising from regulatory non-compliance. For the head of a company, being sent before a criminal court for misleading advertising is unbearable, as it is for the company being condemned for unfair competition by a Commercial Court asked to stop the marketing of a product and pay heavy damages to a competitor (e.g. 2.4 million euros for misuse of the word "fresh" on packaging). The product manager, who took the decision to put a nonconforming product on the market, finds himself in the same state of mind as Guillaume II who, contemplating the ravages of the 1914-18 war, is said to have exclaimed to his entourage "My God, I did not wish for this!".
2. Improve the organization of the business
It is surprising to note how many companies are inadequately organized to address the problems of legal compliance of their products, even as the regulatory environment becomes increasingly complex. Very often, a new product is created exclusively by the R & D and marketing departments. The verification of the regulatory compliance of its composition and its presentation takes place only at the end of the race, in the final sequence. The quality control and / or legal or procedural services are asked to furnish their opinions, within 24 hours if possible and, of course, the opinion has to be favourable. And there begins the via dolorosa of the product manager. This ingredient is not permitted in Europe, neither is this claim, it is not acceptable enough, it must be changed, etc. The marketing blend of the product falls flat at the last minute.
To avoid wasting time, energy and money (e.g. re-packaging by an external agency) arising from the inability to market the new product as is, the organization of the company must improve by involving the head of procedures and / or the lawyer, further upstream. One only needs to assign a lawyer or a procedures manager to R & D - which helps immensely in avoiding brilliant projects that are totally contrary to regulations (e.g. using a health argument or an ingredient permitted in the United States but banned in Europe).
3. Improve legal regulatory functions
The first question asked should be to find out who has the task of verifying the conformity of the product: a technician (head of quality control, head of procedures), or a lawyer? The ideal is to have both simultaneously.
The technician has better knowledge of the product than the lawyer and is able to sort out the basic regulatory issues.
The role of the lawyer begins where that of the technician ends, for example, when a problem has to be solved in the absence of specific texts on the subject. This is often the case for new products, because innovation moves faster than regulations.
The lawyer also finds it easier to solve practical problems by having recourse to an interpretation of a regulation, to an application of general principles (e.g. is there a risk of confusion in the choice of such a trade name, or in such an assertion, etc.), or to a reasoning by analogy (e.g. to apply to product 'A' a solution used for product 'B').
The lawyer can also carry out an analysis of the legality of a national text and decide to dispense with it because it does not comply with Community laws (e.g. illegitimacy of the Italian legislation which requires mention of the natural or synthetic origin of perfumes used in cosmetic products). The lawyer is the man of complex situations that he can resolve, with the help of the technician, who solves day-to-day problems. But the lawyer is useful only if he knows the regulations perfectly, which is not true of some corporate lawyers who are generalists and for whom regulatory issues are only a minor part of their activities. In such a case, external legal help should be called in. The early intervention of a lawyer or head of procedures and proper use of their dual resources reconcile creation and rigour in product development with immense benefit to the company.