WHAT YOU NEED TO KNOW IN A MINUTE OR LESS

A recent rise in class-action complaints against beauty industry leaders, targeting the use of “clean” or “natural” descriptions in cosmetics, further highlights the tightrope brands must walk when marketing to consumers.

In recent years, the beauty industry—consumers, manufacturers, and everyone in between—has unquestionably placed greater emphasis on “clean” and “natural” ingredients and end-products. But what do these claims actually mean to consumers? Sustainable? Non-toxic? Cruelty-free? Vegan? Free of harmful ingredients? The FDA does not define these terms for the cosmetics industry, and the FTC is expected to update its Green Guides sometime in 2024.

Taking matters into their own hands, class-action plaintiffs recently targeted Sephora and The Procter & Gamble Company (P&G) for alleged misleading use of these hot claims. 

Sephora’s Win Leaves Door Open on Meaning of “Clean”

On 15 March 2024, Sephora overcame a proposed class action in New York federal court, alleging its use of the label “Clean at Sephora” on certain beauty products, which contained synthetic or otherwise harmful ingredients, was deceptively misleading to consumers. The plaintiff claimed the “Clean at Sephora” program took advantage of vague regulations enforced in the cosmetics industry.

District Judge David N. Hurd disagreed. The court dismissed the complaint, finding that the plaintiff failed to “plausibly allege…that [Sephora] materially misled reasonable consumers when it marketed and sold its ‘Clean at Sephora’” cosmetics, or that Sephora “made any explicit or implied promises that its ‘Clean at Sephora’ cosmetics were all-natural and free of any potentially harmful ingredients.”¹

The court concluded that the plaintiff’s complaint left the court guessing as to how reasonable consumers would mistake “Clean at Sephora” to mean that the products contained “no synthetic or harmful ingredients whatsoever.”² In fact, Sephora states that “Clean at Sephora” means: “Brands formulated without phthalates, formaldehyde or formaldehyde releasers, oxybenzone and octinoxate, and more,” not free from any and all synthetic ingredients. Thus, Sephora’s clear statement on Sephora’s definition of “clean” notified consumers as to the reasonable interpretation of the claim.³

Pending: P&G to Defend Label on Hair Care Products

On 9 February 2024, two proposed class-action plaintiffs sued P&G in California federal court for P&G’s phrasing of “X% natural-origin/naturally derived ingredients” on its Herbal Essences and Pantene shampoos and conditioners.⁴ Plaintiffs specifically allege these hair care products do not contain the identified percentages of natural-origin or naturally derived ingredients because, even if certain ingredients (e.g., citric acid) are available in nature, these ingredients “are not generally available from natural sources on the scale required for use in mass-produced products and” are “instead created through industrial processes for use in the [identified] products.”⁵

Plaintiffs also claim that P&G’s labeling is based on the British Standard Institute’s (BSI) ISO 16128—an alleged “Byzantine method” to calculate “natural origin” and “% natural-origin.”⁶ Plaintiff understands certain BSI publications to warn that brands should not rely upon ISO 16128 when drafting claims and labeling. The cited publication reads: “Neither ISO 16128-1 nor this document [i.e., ISO 16128-2] addresses product communication (e.g. claims and labelling),...characteristics of packaging materials or regulatory requirements applicable for cosmetics.”⁷

It has yet to be determined whether the court also interprets BSI’s failure to address product communications as a warning against brands using this standard to create their product claims and labels.

Takeaways

As the old adage correctly notes, the only constant is change. We are certainly on the precipice of changing conceptions of these terms, rooted in evolving consumer understanding and expectations. 

Where does this leave brands seeking to make these claims? The above actions remind brands of the importance of clear consumer communications, robust substantiation, and constant revisiting of claims against the evolving legal and consumer landscape. 

Footnotes

¹ Finster et al. v. Sephora USA Inc., Case No. 6:2022-cv-01187, 2024 WL 1142014, *5 (N.D.N.Y. Mar. 15, 2024).

² Id. at *2.

³ Id. at *1.

⁴ Complaint at 1-2, McWhorter et al. v. The Procter & Gamble Co., Case No. 3:24-cv-806 (N.D.Cal. 2024).

⁵ Id. at *2.

⁶ Id.

⁷ Id. at *3, 20.