Attorney: Guidance needed for cosmetics industry to avoid litigation

By Jacob Bielanski | Mar 17, 2016

NEW YORK (Legal Newsline) — Makers of cosmetics could benefit from certain guidelines in order to avoid class action lawsuits such as one filed in February against actress Jessica Alba's brand, a St. Louis attorney says.

A class action lawsuit filed Feb. 12 by two consumers in New York takes aim at The Honest Company, a maker of cosmetics and personal care products, for its claims of being “all natural." The lawsuit is built on New York law protecting against false or misleading claims from product manufacturers.

According to attorney Cicely Lubben, of Stinson Leonard Street, the lawsuit is likely one of what will be a growing number brought against companies that claim their products are “natural” or “organic.”

Foods and certain products, she told Legal Newsline, have industry guidelines that help to define when the word can be used, but items like cosmetics lack such guidance.

“It seem like there’s a gap for other non-food organic products,” she said. “And that’s where I think it would be helpful for the government or industry to provide more guidance.”

Though a number of marketing terms have established guidelines from the Federal Trade Commission, including “compostable” and “non-toxic,” it has not yet issued similar guidelines for “natural” or “organic.”

Lubben said The Honest Company will need to have an established, scientific method for quantifying that its products are as “natural” as they claim to be.

This could prove a moving target, as the defense would need to address what a “reasonable consumer” would interpret by their marketing statements. That ambiguity, she said, is more likely to favor the plaintiff than The Honest Company.

“(The government) is going to err on the side of telling companies to disclose more information and to explain why they’re calling things ‘natural,’” she said. “They’re going to protect the consumer more.”

Courts, however, are increasingly placing the burden of sifting through misleading advertising on the consumer, according to Lubben. She wrote in a blog post that broadly stating that a claim was misleading is not enough, requiring consumers to “instead have to come forward with evidence to substantiate that a particular ‘natural’ or ‘organic’ claim is false or misleading.”

The most recent lawsuit is not the company’s first over a similar issue. Last September, a class action lawsuit was filed over the company’s sunscreen.

In that suit, the named plaintiff claim that not only did the product contain synthetic chemicals, but that it was inneffective at avoiding sunburns.

Alba, co-founder of the company, told People magazine at the time that the accusations were “baseless and without merit,” and pledged to increase education efforts to help people understand the difference between chemical and mineral sunscreens.

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