Cosmetic and Personal Care Product Class Actions: Regulatory Framework, Implied Drug Claims, Hidden Ingredients

This CLE webinar will discuss common and emerging liability theories in class actions targeting cosmetics and personal care products, the effect of increased inclusion of testing results in complaints, and how litigation over cosmetics and personal care products compares with food and beverage class actions.

Class action litigation concerning cosmetics and personal care products is accelerating in tandem with increased federal scrutiny by way of the Modernization of Cosmetics Regulation Act and enhanced state action, including regulating ingredients or their amounts in cosmetics. The FDA has launched its Adverse Event Reporting System (FAERS) Public Dashboard for Cosmetic Products and also embarked on an initiative to integrate multiple disparate adverse event reporting systems across medical products, devices, tobacco, food, cosmetics, and veterinary medicines.

Some class lawsuits have sought damages for implied drug claims and misbranded drugs (unapproved drugs), but much class litigation relies on allegations of purported false advertising ("natural" or "unscented"), deceptive packaging (slack fill), misrepresentation of company practices (greenwashing), product liability (products do not perform as advertised), or "unacceptable" levels of some ingredient not part of the manufacturing process. Some commentators have drawn comparisons with food and beverage class lawsuits.

One special aspect of cosmetics and personal care product class actions is that plaintiffs frequently include product testing results in their complaints. The test results have sometimes backfired on plaintiffs and defendants have used them to demonstrate lack of standing in some jurisdictions if the testing was not done on the actual product or products that the plaintiff purchased. On the other hand, tests sometimes identify ingredients or alleged contaminants that result from degradation or environmental contamination and were not part of the product formulation. Plaintiffs then allege the presence of certain substances at "unacceptable" levels, despite there being no consensus about what constitutes "safe" levels or who determines what is "safe."

Listen as our experienced panel discusses this fast-growing category of class action litigation and offers insights from possible similar categories of class actions.