Just how natural are your “natural” beauty products? It is difficult to say. Really difficult, actually. While this particular segment of cosmetics and beauty goods, “clean,” “green,” “natural,” and/or “organic” ones, are surging in popularity and profitability – as “consumers, increasingly wary of products that are overly processed or full of manufactured chemicals, are paying premium prices for natural goods,” the New York Times reported this spring – it is far less neatly-defined when considering just how natural “natural” really is.
One need not look much further than actress Jessica Alba’s Honest Co. to see how the definitions of “natural” can vary and give rise to large-scale legal problems as a result. Honest’s impressive growth to date – in less than three years of its founding in 2012, the Los Angeles-based company was valued at $1.7 billion (it has since dropped to $1 billion) – has not been without some significant drawbacks, including a slew of lawsuits.
As noted by CNN, “In September 2015, the company was sued by a customer who said its sunscreen doesn't work and is not really ‘natural.’ And in April 2016, the Organic Consumers Association filed a suit that alleged Honest baby formula contains ingredients that are not really organic.”
The most striking suit, however, came on the heels of a widely-read Wall Street Journal investigation in March 2016, which revealed that Honest detergent was being falsely advertised. According to the WSJ’s investigation and the class action lawsuit that followed, despite the company’s advertising which claimed that its detergent was free of sodium lauryl sulfate, and instead, made use of a gentler compound, that was not actually the case.
The Honest Company, while denying any wrongdoing, agreed to pay $1.55 million to settle the class action lawsuit in June 2017, but not before it was served its fair share of bad press in connection with the matter. A week later, Alba’s brand was sued again for erroneously labelling dozens of home and personal care products as “natural,” plant-based or chemical-free. That case was settled out of court in June, in accordance with confidential terms.
In facing litigation, Honest is not all that different than the many other brands that have been taken to court – and to task – for their “natural” products, and in some ways, it is difficult to necessarily fault these companies since there is not, of course, a set-in-stone definition for “natural” products. Such a standard has not come to light in these cases, the vast majority of which have been settled – or “dismissed or, more recently, stayed by judges who hope regulators will step in with a definition,” according to the Times – before trial and before the court could attempt to issue a bright line standard.
This is particularly true, as in most of the cases, the plaintiffs are primarily seeking monetary damages to reimburse them for the difference in price they paid for what was being advertised as a “natural” product, which are almost always more expensive than non-“natural” alternatives.
While the Food and Drug Administration (“FDA”) has not defined “natural” for use in cosmetic labeling or pursued any enforcement action against cosmetics manufacturers for the use of “natural” claims, it has provided guidance by way of its standards for food, as aptly noted by Suzie Trigg, a partner working in New York-based Haynes Boone’s Dallas office and specializing in (among other things) FDA regulatory issues. According to Trigg, given the FDA’s stance, that “it is reasonable to assume that the [government entity] would not object to the use of the term ‘natural’ if the product does not contain synthetic substances.”
Moreover, Trigg notes that the Federal Trade Commission ("FTC") also has not set forth any policies on natural cosmetic and beauty products.
There is potential progess on the horizon, though. Dr. Scott Gottlieb, the commissioner of the FDA, told the Times in a statement, “Consumers have called upon the FDA to help define the term ‘natural’ and we take the responsibility to provide this clarity seriously. We will have more to say on the issue soon.”
As for potential legislation, Senators Dianne Feinstein and Susan Collins are working to extend the FDA's oversight in terms of beauty products from its current ability to to prohibit “adulterated or misbranded” cosmetics from being sold) to something more far-reaching by way of the Personal Care Products Safety Act. The bill, which was introduced to the Senate last year, would amend the Federal Food, Drug, and Cosmetic Act and require cosmetics companies to (among other things) submit to the FDA cosmetic ingredient statements that include the amounts of a cosmetic's ingredients.
From there, the FDA would be tasked with determining whether a product has "a reasonable probability of causing serious adverse health consequences," and if that is, in fact, the case, the FDA could then prohibit its distribution by suspending the cosmetic ingredient statement. Moreover, "if other cosmetics from the same facility may be affected, the FDA may prohibit distribution from the facility by suspending the facility's registration."
In enacted, the bill, which was referred to referred to the Senate's Committee on Health, Education, Labor, and Pensions last year, would be the first piece of legislation governing cosmetics that has been passed by the U.S. government in more than 80 years.