Clean Beauty: A Void in Consumer Protection

by Avery Auton, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

Going to the grocery store, some customers prefer to purchase natural foods. Customers can choose to avoid pesticides, antibiotics, and growth hormones, whether it be for personal, health, environmental, or moral reasons by selecting items labeled with the certified United States Department of Agriculture (“USDA”) Certified Organic seal.¹

While customers can choose what they put in their mouths, it is more difficult for customers to choose what they put on their bodies. Lately, people have been looking to switch their beauty routines to more natural options as research shows beauty products contain known carcinogens.² A report by the Organic Consumer Association (“OCA”) revealed the commonly known carcinogen 1,4 dioxane is in twenty-eight percent of personal care products.³ Other products contain Endocrine Disrupting Chemicals (“EDCs”), which potentially absorb into the circulatory system, affecting hormones.⁴ Yet, when people seek to better their beauty routines by selecting non-harmful products, they are often left misled and confused, as some brands and stores label items as clean when they still contain the very EDCs, carcinogens, and chemicals the consumer is attempting to avoid.

This article explores the lack of regulation in the cosmetic industry, specifically regarding the lack of a uniform standard for clean beauty. Part II provides background on what clean beauty is, current litigation involving clean beauty, and the current regulation of cosmetics and cosmetic advertising. Part III explains why the current lack of uniform clean beauty standards gives consumers little to no leverage or ability to seek legal redress.

II. Background

As defined by the Federal Drug Administration, cosmetics are “articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body… for cleansing, beautifying, promoting attractiveness, or altering the appearance.”⁵

A. Clean Beauty Trend and Current Litigation

What is considered clean beauty? Given the lack of regulation by the Federal Drug Administration (“FDA”), clean beauty can mean a variety of things. Goop, a popular clean beauty brand, defines clean beauty as “products made without ingredients shown or suspected to harm human health or that of the planet.”⁶ Mysa, the beauty and well-being journal, describes clean beauty as “cosmetics and skin care products that are free from harmful chemicals… Clean beauty is synonymous with non-toxic beauty.”⁷ Today News describes clean beauty as avoiding “the use of ingredients like parabens, sulfates, silicones, phthalates, and synthetic fragrances while still delivering results.”⁸ While definitions of clean beauty vary, it seems consistent that the goal of clean beauty is to avoid potentially harmful products. Clean beauty continues to gain popularity, as the global market was worth $6.5 billion in 2021 and is predicted to reach a value of $15.3 billion by 2028.⁹

As the demand for clean beauty rises, and the standards of clean remain ambiguous, companies labeling their products as “clean” find themselves involved in consumer deception litigation, as the company’s and customer’s definitions of clean differ. Recent ongoing litigation includes class actions brought against both Sephora and Target.¹⁰ Target created a “Target Clean” label, which it independently applied to products as “an easy way for consumers to identify purportedly cleaner products, without having to do any of their own analysis.”¹¹ In stores, Target has a sign explaining the qualifications of the Target Clean label, indicating the labeled products do not include a list of specific ingredients.¹² The Plaintiffs allege Target is misleading customers because the “Target Clean” products still contain ingredients equally as harmful as the banned ingredients.¹³

In a similar class action brought against Sephora, the Plaintiffs allege Sephora makes representations and omissions that are false and misleading regarding Sephora’s “Clean at Sephora” line.¹⁴ Like Target, Sephora independently labels the products it deems to meet its “Clean” standard.¹⁵ Sephora advertises its “Clean at Sephora” line as “[t]he beauty you want, minus the ingredients you may not. This seal means formulated without parabens, sulfates SLS and SLES, phthalates, mineral oils, formaldehyde, and more.”¹⁶ All products meeting this criterion, Sephora labels with the “Clean at Sephora” seal.¹⁷ Plaintiffs allege many of the Clean at Sephora products “contain ingredients inconsistent with how consumers understand this [clean] term.”¹⁸ The complaint then lists specific ingredients in “Clean at Sephora” labeled products reported to cause possible harm.¹⁹

B. The FDA’s Role in Regulation

The FDA has the power to regulate the cosmetic industry through the Federal Food, Drug, and Cosmetic Act.²⁰ Unlike the FDA’s authority over drugs, biologics, and medical devices, the FDA does not need to approve cosmetic products before sale.²¹ While the FDA does not pre-approve cosmetic products, the FDA has the authority to place regulations on cosmetics in interstate commerce.²²

1. Modernization of Cosmetics Regulation Act

The beauty industry has historically lacked regulation, as the most recent change to cosmetic regulation before 2022 was in 1938.²³ The Modernization of Cosmetics Regulation Act of 2022 (“MoCRA”) has expanded the scope of the FDA’s regulatory authority by allowing for required record-keeping, labeling requirements, facility registration, and FDA recall authority.²⁴ MoCRA requires cosmetic manufacturers to keep records of all adverse events related to the product for six years and report all serious adverse events to the FDA within fifteen days of the issue arising.²⁵ The FDA now requires all cosmetic-producing facilities to register with the FDA and disclose the products and ingredients manufactured.²⁶ The act additionally gives the FDA the authority to recall any cosmetic product the Administration believes is misbranded or causing serious health consequences.²⁷ Further, the FDA can suspend registered facilities that have or will probably cause adverse health reactions.²⁸

While MoCRA expanded regulation on the cosmetics industry, it did not ban any additional chemicals or ingredients for use in beauty products.²⁹ The United States only bans eleven chemicals from use in beauty products, while the European Union has banned more than 2,400 chemicals.³⁰

2. The Safer Beauty Bill Package

In March of 2023, a package of four bills was introduced—not yet voted on—in Congress to further cosmetic regulation and fill the gaps of MoCRA.³¹ The first bill is the Toxic-Free Beauty Act of 2023, which would aim to ban eleven of the most hazardous chemicals that the European Union, California, and Maryland have already banned.³² The second bill is The Cosmetic Safety for Communities of Color and Professional Salon Workers Act of 2023, which aims to provide transparency on the use of specific products and create two national resource centers of Beauty Justice and Health and Safety Protections for Professional Salon Workers.³³ The Cosmetic Fragrance and Flavor Right to Know Act would require the disclosure of fragrance ingredients, which is currently the law in New York and California.³⁴ Lastly, the Cosmetic Supply Chain Transparency Act of 2023 would mandate suppliers of cosmetic ingredients to fully disclose ingredients and toxicity data.³⁵

C. The FTC’s Role in Regulation

The Federal Trade Commission (“FTC”) has a role in cosmetic advertising as Section 5 of the Federal Trade Commission Act disallows “unfair or deceptive acts or practices in or affecting commerce.”³⁶ A practice is “unfair” when it “[c]auses or is likely to cause substantial injury to consumers,” “[c]annot be reasonably avoided by consumers,” and “[i]s not outweighed by countervailing benefits to consumers or to competition.”³⁷ A practice is deceptive when “[a] representation, omission, or practice misleads or is likely to mislead a consumer, “[a] consumer’s interpretation of the representation, omission or practice is considered reasonable under the circumstances,” and “[t]he misleading representation, omission, or practice is material.”³⁸

III. Discussion

As people continue to seek out clean beauty products, consumers are often left to rely on what stores label to be clean or on consumers’ own research to decipher the list of the ingredients on the back of the product. The lack of FDA regulation in the cosmetic industry causes both a lack of consumer protection and a lack of guidance for cosmetic retailers and producers in labeling products. The protections afforded to consumers from the cosmetic industry include the FDA regulations, FTC deceptive advertising laws, and state consumer protection laws. Each form of protection afforded to consumers often falls short of providing protection against clean beauty products seen as deceptive in the consumer’s eyes. The lack of consumer protection derives from product manufacturers’ and consumers’ notions of what is considered clean, yet the label does not rise to the level of being “unfair” or “deceptive” due to the ambiguities of the term clean.³⁹ Therefore, the best way to afford consumer protections and protect manufacturers from consumer litigation is for the FDA to create a uniform standard of clean beauty.

A. Consumer Redress through the FTC

The FTC has yet to use the Federal Trade Commission Act to label clean cosmetic labeling as “unfair or deceptive.”⁴⁰ While the FTC has yet to chime in on products labeled as clean, in 2016 the FTC settled with four businesses advertising cosmetics containing synthetic ingredients as “all-natural” or 100% natural.”⁴¹ The FTC argued these phrases were deceptive because when a product is advertised as all-natural, consumers should be able to expect a product with no synthetic ingredients.⁴²

While claims of being all or 100% natural are seen as deceptive by the FTC, the FTC has not brought suit against companies simply advertising their products as clean or natural.⁴³ With the clean beauty market predicted to grow by almost $9 billion by 2028, the FTC may begin exploring some of these marketing efforts as “deceptive,” but it is likely these clean labels will not rise to the level of deception because the lack of guaranteeing qualifiers such as “all” or “100%.”⁴⁴

B. Consumer Redress through State Consumer Protection Laws

Consumer protection state laws can fail to protect consumers against clean and natural product claims because companies can bring the defense that the terms natural and clean are ambiguous.⁴⁵ An example of this clear void in consumer protection is in the Ninth Circuit case McGinity v. P&G.⁴⁶ In McGinty, the plaintiff argued P&G’s product labeled with “Nature Fusion” violated California’s Consumer Protection Laws as the packaging “represents that the Products are natural, when, in fact, they contain non-natural and synthetic ingredients, harsh and potentially harmful ingredients, and are substantially unnatural.”⁴⁷ The court used a “reasonable consumer” standard, holding “Nature Fusion” was ambiguous rather than misleading, which requires a reasonable consumer to refer to the back label, where the consumer would see the “avocado oil is the natural ingredient emphasized in P&G’s labeling and marketing.”⁴⁸ Due to the ambiguity of the product name, the court found the product did not violate California’s Consumer Protection Laws.⁴⁹ As pointed out in the concurring opinion, while the product name was not deceptive by law, the product was clearly named “Nature Fusion” to capitalize on the fact the product was perhaps more natural than its counterparts, when in reality, the product only contained one natural ingredient.⁵⁰

This case provides companies with a potential defense that phrases such as clean and “natural” are ambiguous, which requires customers to read the label to determine whether the product meets the customer’s individual standards of clean.⁵¹ While Target and Sephora have not been decided at the time of this writing, the cases will likely have similar outcomes to McGinty.⁵² There are no statutorily prescribed definitions of clean, therefore the term is ambiguous.⁵³ Since Target and Sephora provided the definition of what the stores considered clean, a court would likely find a reasonable consumer would understand clean to mean exactly what the respective store stated.⁵⁴ Due to the lack of a uniform definition of clean, businesses can label products as clean on the basis of the businesses’ own definition, leaving consumers disappointed and businesses more susceptible to consumer litigation.

C. Proposed FDA Uniform Standard

While the FDA implemented new regulations in the cosmetic industry, the current standards still fall short of protecting consumers.⁵⁵ Consumers are bringing class action suits because of differing interpretations of what clean means in the cosmetic industry.⁵⁶ The FDA can fix the ambiguity of clean by creating a uniform standard. A uniform standard would aid both consumers and producers, as consumers would know what they are purchasing, and the FDA would put retailers on notice of what would be considered a deceptive representation of clean. There are two standards that could potentially rid the disconnect between consumers and producers. The FDA could implement a regulated uniform standard, like the USDA Organic standard implemented by the Department of Agriculture, or the FDA and FTC could define the word clean, standardizing its meaning.

The Department of Agriculture has a certification process that allows food products to be certified as USDA Organic, and once certified, the products can be labeled with the official USDA Organic seal.⁵⁷ In order to become certified, a food producer must follow a five-step certification process consisting of creating an organic system plan, implementing the system plan, receiving an inspection, having a certifying agent review the inspection report, and receiving a certification decision from the certifier.⁵⁸ The FDA implementing a similar standard for clean cosmetics would allow producers to identify their products with a certification seal, notifying customers the product complies with a federally recognized clean standard. A certification process would be preferable because the certification would guarantee consumers are receiving a product that meets standardized criteria of clean, rather than allowing a business to create its own definition of clean. The certification option of clean cosmetics is preferable because it would prevent non-certified sellers from labeling their products as clean.

While a uniform certification process would afford the most protection to both consumers and retailers, the potential costs of overseeing a certification program may create issues. If a certification program proves too costly, an alternative would be for the FDA and FTC to define the term clean with specificity to include what can and cannot be in a product labeled as clean. While consumers may still have the hazard of purchasing mislabeled products, the standardized definition of clean would allow the FTC to bring unfair and deceptive practice suits against non-complying companies and allow for consumers to easily bring state consumer deception and fraud cases, as the standard definition would eradicate the current ambiguities of the word clean in the cosmetic industry.⁵⁹

IV. Conclusion

As the clean beauty market continues to expand, and consumers continue to seek products that do not contain harmful ingredients, consumers need increased cosmetic regulation to receive protection from deceptive marketing tactics. A customer should not be left to self-decipher whether a cosmetic product has harmful ingredients. While Congress passed MoCRA to allow the FDA to further regulate the cosmetic industry, as the new proposed bills indicate, there are still large gaps in cosmetic regulation.⁶⁰ The best way to reduce consumer deception and increase consumer protection would be if Congress passed an Act allowing for a national, uniform standard for clean cosmetics. Enacting a similar system to the USDA Organic certification, a uniform standard would allow consumers to opt for products they know are approved to be clean and allow producers to label their products without fear of mass consumer litigation.

Cover Photo by pmv chamara on Unsplash

Avery Auton

A current 2L, Avery Auton earned her B.A. in Business Non-Profit Administration and Political Science from Franklin College. When not studying for law school Avery enjoys golfing, spending time with family, and hanging out with her cat Jojo.

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