Sephora Disputes “Misleading” Allegations in Clean Beauty Lawsuit

On March 2, 2023, Sephora filed its reply in support of its motion to dismiss proposed class action claims that its “Clean at Sephora” program was false and misleading, disputing allegations that a significant portion of relevant, reasonable consumers were or could be misled about what ‘Clean at Sephora’ means, and that the ingredients permitted by Sephora’s program were potentially harmful to humans.

Sephora’s reply (presumably) concludes preliminary briefing in what has become a closely-watched lawsuit in the beauty and wellness industry over the meaning of the term “clean beauty.” Absent clear regulatory guidance from the FDA and the FTC, companies’ claims involving the terms “clean,” “natural,” “nontoxic,” or “organic” have been scrutinized in social media, and by an increasingly active and organized plaintiffs’ bar.

While it remains to be seen how the court will decide the “Clean at Sephora” case, companies should continue expect more litigation in this area, as what it means for beauty products to be clean, natural, nontoxic, or safe, remains the subject of intense debate.

As explained in our previous publications (here, here, and here), the market for clean beauty is expected to reach an estimated $11.6 billion by 2027. But absent clear regulatory guidance about what it means for beauty products to be “clean,” “natural,” “nontoxic,” or “safe, promoting products as “clean” can carry significant regulatory risks, and leaves the industry ripe for class action litigation.

Sephora launched its “Clean at Sephora” program in 2018. To qualify for inclusion in the program, which spans across various product categories, products must be formulated without certain common cosmetic ingredients—such as parabens, sulfates SLS and SLES, phthalates, formaldehyde and more—that are linked to possible human health concerns.

On November 22, 2023, Plaintiff Lindsay Finster filed a proposed class action lawsuit in the U.S. District Court for the Northern District of New York, alleging that products advertised as part of the “Clean at Sephora” program contain ingredients that are “inconsistent with how consumers understand” the term “clean.”

According to plaintiff, consumers understand the definition of “clean” beauty to mean the dictionary’s definition of “clean”: “free from impurities, or unnecessary and harmful components, and pure.” Thus, to be considered “clean” in the context of beauty, plaintiff alleged that products should be “made without synthetic chemicals and ingredients that could harm the body, skin or environment.” But, as plaintiff contended, “a significant percentage of products with the ‘Clean at Sephora’ [seal] contain ingredients inconsistent with how consumers understand the term.” Consequently, plaintiff alleged that the “Clean at Sephora” program “misleads consumers into believing that the products being sold are “natural,” and “not synthetic” and to paying a price premium based on this understanding.”

Plaintiffs alleged potential class action violations of §§ 349 and 350 of New York’s General Business Law (“NY GBL”), as well as multi-state consumer protection statutes, and breach of express and implied warranty, the Magnuson Moss Warranty Act, fraud, and unjust enrichment claims.

On February 2, 2023, Sephora moved to dismiss plaintiff’s complaint, arguing that “[i]t is not plausible that reasonable consumers are or could be confused by the ‘Clean at Sephora’ program” for several reasons.

First, Sephora argued that plaintiff relied on unsupported and conclusory allegations about consumers understanding of the word “clean.” While plaintiff argued that consumers understood the definition of “clean” beauty to mean the products made without synthetic chemicals and or potentially harmful ingredients, Sephora countered that plaintiff failed to plead any facts showing that a significant portion of relevant reasonable consumers could be misled by Sephora’s claims into believing that the “Clean at Sephora” program consisted of only natural products and ingredients. As Sephora noted, words like “natural,” “organic,” and the like never appeared on the label or elsewhere. Instead, plaintiff relied upon “on selectively quoted blog posts and webpages from small businesses, which not only lack reliability and authority but are presented without evidence that any significant number of consumers have even read them, let alone agreed with them.”

Second, Sephora argued that plaintiff mischaracterized Sephora’s representations as being about the kinds of ingredients included in the program, rather than excluded. Thus, plaintiff was attempting to turn “Clean at Sephora” into “Natural at Sephora”—claims that Sephora did not make. On the contrary, Sephora’s marketing for the program focused on the exclusion of certain ingredients linked to potential human health outcomes. Because Sephora made no representations about the products or ingredients included, it argued that it could not mislead consumers about the safety of included products or ingredients in the program. Moreover, plaintiff failed to plausibly allege that any of the ingredients included in the program were potentially harmful, relying instead on a series of unattributed and unsubstantiated blog posts.”

Finally, Sephora rejected plaintiff’s contention that it forced consumers to scrutinize product lists in contradiction of the Second Circuit’s 2018 decision in Mantikas v. Kellogg, which prohibits the use of ingredient lists on the side of packaging to clarify otherwise misleading presentations where plaintiff failed to identify any misleading conduct by Sephora.

Sephora also rejected plaintiff’s efforts to seek relief under other unspecified consumer protection statutes, arguing that plaintiff failed to plead how the unspecified consumer protection statutes were similar to the NY GBL, and disputed plaintiff’s breach of warranty, consumer fraud, and unjust enrichment claims as duplicative of plaintiff’s NY GBL claims, or otherwise contingent on the same erroneous premise—that the ‘Clean at Sephora’ label is misleading—and thus, equally deficient.

In opposition to Sephora’s motion to dismiss, plaintiff reiterated that it was sufficiently plausible that reasonable consumers would perceive the “Clean at Sephora” as excluding synthetic ingredients, and that “Clean at Sephora” meant free from potentially harmful ingredients. Plaintiff further contended that resolution of her multi-state claims was not ripe until the class certification stage, and that Sephora’s advertising campaign created an express warranty that “Clean at Sephora” products were formulated without potentially harmful ingredients.

In its reply, Sephora argued that reasonable consumers could not interpret the phrase “Clean at Sephora” as limited to only “natural” ingredients when Sephora “prominently explains, in plain terms, exactly what it means by the phrase: ‘formulated without parabens, sulfates sodium lauryl sulfate (SLS) and sodium laureth sulfate (SLES), phthalates, mineral oils, formaldehyde, and more.’” Sephora also refuted plaintiff’s efforts to characterize the program’s inclusion of the phrase “and more” into an impression that synthetic ingredients were excluded along with the listed ingredients, noting that plaintiff alleged no facts to support her contention that reasonable consumers shared that impression.

Finally, Sephora rejected what it described as plaintiff’s efforts to conflate the meaning of the word “clean” with “non-synthetic” or “natural,” or otherwise assert that because products are not “natural,” they were not safe, noting that not all synthetic ingredients were unsafe, while not all natural ingredients were safe.

MORE TO COME

Why Beauty Lawsuits Are Set to Increase (Part One)

Beauty companies seem to be coming under increasing fire with lawsuits, fueled in part by the rise of Tik-Tok and other social media platforms, and legal experts are expecting the number of cases to surge. For a quick recap of the current ones garnering the most attention.

In a suit against Olaplex, several plaintiffs have claimed they have sustained personal injuries to their hair and scalp including hair loss and damaged hair, something chief executive officer JuE Wong has vehemently denied on social media. There’s also a case against L’Oreal, in which Missouri resident Jennifer Mitchell filed a lawsuit against the beauty giant and a slew of other companies, claiming that her uterine cancer was “directly and approximately” caused by her regular and prolonged exposure to phthalates and other endocrine-disrupting chemicals found in their hair care products. Recently, it was consolidated into a new class action multi-district litigation (MDL).

Then there’s the suit against Sephora where Lindsey Finster alleged that a significant percentage of products with the “Clean At Sephora” tag contain ingredients inconsistent with how consumers understand this term. In particular, it claimed that Saie Mascara 101 contains numerous synthetic ingredients, several of which have been reported to cause possible harm.

“If you Google the Olaplex case, that says it kind of started from Tik-Tok. As an attorney, it is crazy to think that trends in litigation are going to come from social media outlets,” said Marissa Alkhazov, a shareholder in Buchalter law firm’s Seattle office and the Northwest chair of the firm’s products liability practice group. “But the fact of the matter is that information is spread so widely now, and there’s this huge audience and our society is more litigious.”

Kelly A. Bonner, an associate at law firm Duane Morris, added that a growing interest and concern by consumers about what’s in their products and the mainstreaming of clean beauty products, which has become a very big business, along with competing ideas about what constitutes clean, are other driving factors, compounded by media coverage.

“You have a 24/7 global media landscape that amplifies those concerns and you add to that a very active and increasingly organized plaintiffs’ bar and what you’re going to see are a lot more cases, a lot more attention and a lot more media coverage,” she said.

While beauty suits are nothing new with a class action suit brought against Los Angeles hair stylist Chaz Dean’s brand Wen in 2016 among past cases, John Gardella, a shareholder at CMBG3 Law, believes that a focus on ESG practices also means there is likely to be an uptick in suits similar to the one against Sephora that is currently playing out in court. (The L’Oreal and Olaplex cases are considered product liability suits, while Sephora is involved in a consumer fraud litigation.)

“There’s a big push in the U.S. on that particular topic and it’s caught the attention of many plaintiffs’ attorneys in terms of how various industries are marketing their products and whether or not they are truly as they say,” he said.

“I think almost every company markets their products in some way being safe to use, environmentally friendly, clean, things like that,” he continued. “The nature of the beauty industry at the moment is such that there are many synthetic products or components in those products. So the plaintiffs’ attorneys have certainly taken a closer look at exactly what’s being said as compared to what is in those products and that’s driving a lot of lawsuits that we’re seeing.”

Coty Changing The Definitions Of Beauty

One of the world’s largest beauty companies with a portfolio of iconic brands across fragrance, color cosmetics, skin and body care, launches a new campaign to change the dictionary definitions of beauty. The #UndefineBeauty campaign recognizes that the current English language definitions of the term ‘beauty’ are outdated and no longer reflect the values of today’s society. Specifically, the examples cited under the current entries for ‘beauty’ across the leading English dictionaries are both limiting and exclusive.

Sue Y. Nabi, Coty’s CEO, has written an open letter to the major Dictionary houses, co-signed by the Company’s Executive Committee and Senior Leadership Team, highlighting the outdated nature of their definitions, and their need for review.

Sue Y. Nabi said, “Seen through the lens of today’s society and values, the definition of beauty hasn’t aged well. Of course, not all people are impacted by, or feel excluded by these definitions. But the implicit ageism and sexism in the examples were born in a different time. We believe it’s time to bridge the gap – time to bring the definition to where society is today. By changing the definition, if more people feel included – feel beautiful – there will be a ripple effect which touches us all.”

“At Coty, we believe that no one can control or dictate what is, or is not, beautiful,” said Sue Y. Nabi. That is why the campaign to #UndefineBeauty aims to ‘undefine’ rather than simply ‘redefine’ beauty, so that no one feels excluded by the definition or examples that accompany it. Founded in Paris in 1904, Coty is one of the world’s largest beauty companies with a portfolio of iconic brands across fragrance, color cosmetics, and skin and body care. Coty serves consumers around the world, selling prestige and mass market products in more than 130 countries and territories. Coty and our brands empower people to express themselves freely, creating their own visions of beauty; and we are committed to making a positive impact on the planet.

Exposure To Benzene Is Not Safe

Two customers sued Pierre Fabre USA Inc., the maker of Klorane dry shampoo. The consumers claim that Klorane dry shampoo contains benzene, a carcinogen. The Klorane class action lawsuit was filed in the U.S. District Court for the Northern District of Illinois.

Two Illinois consumers claim that Klorane dry shampoo contains benzene, a human carcinogen. Plaintiffs Magdalena Bojko and Courtney Heeren claim they have each spent at least $40 on Klorane dry shampoo and purchased Klorane Dry Shampoo with Nettle and Klorane Dry Shampoo with Oat Milk. Allegedly, they relied on the labeling and advertisements of the products to make their purchasing decision. Bojko and Heeren claim that Pierre Fabre does not disclose the presence of benzene in its products so they purchased the dry shampoo believing it to be safe for use, according to the Klorane dry shampoo class action.

Bojko’s and Heeren’s claims that Klorane dry shampoo contains benzene are part of a concern that the carcinogen may be present in a range of aerosol dry shampoos. Valisure, an independent laboratory, petitioned the Food and Drug Administration to test various dry shampoos for benzene after discovering the presence of the chemical in some products, the Klorane benzene lawsuit states.

Benzene appears in the aerosol Klorane dry shampoo as a propellant, allowing the product to be aerosolized, the class action claims. Allegedly, benzene and other volatile propellants are derived from crude oil. 

While people come into contact with low levels of benzene in many contexts, the FDA has determined that no level of exposure to benzene is safe, the Korane benzene class action states. It claims that benzene exposure has been linked to the development of many types of cancers.  

Bojko and Heeren claim that when customers use the dry shampoo, they spray it very near their face in what is likely a closed environment, like a bathroom. This means they likely breathe in the product, according to the lawsuit. Bojko and Heeren also seek financial compensation for themselves and other consumers, claiming that they were financially injured by Pierre Fabre and the company’s failure to adequately inform consumers of the benzene in Klorane.

Magdalena Bojko and Courtney Heeren are represented by Gary Klinger, Nick Suciu III, Erin J. Ruben and Alex Honeycutt of Milberg Coleman Bryson Phillips Grossman PLLC, Jeff Ostrow and Kristen Lake Cardoso of Kopelowitz Ostrow Ferguson Weiselberg Gilbert and Max S. Roberts and Sarah N. Westcot of Bursor & Fisher PA.

Clients Have Changed Since The Government Lock Down

Inflation and/or stock market volatility are not causing a slowdown in spending from salon clients. Those that did report a decrease in spending (47.1 percent) said they’re experiencing less frequent visits, a decline in add-on services, a delay in appointments and less spending on retail. And, of course, some clients have opted to take their hair routine into their own hands, coloring at home or embracing their grey. Those who are seeing an uptick in services said they are mostly conditioning treatments, smoothing services and color upgrades. Yes this industry will be changing. Especially if we see a depression in the future. Right now a lot of consumers have to worry about the increase in gas, rent, mortgages, food etc. In the next few months we will see new elections come arising and people will vote for there choose. A lot of citizens are very unhappy with the current administration and there handling of nationwide matters. Maybe the tide will change for the better for our nation. But to me there is a change in priority in beauty needs. Basic survival is the constant now. Not hair.

  • Clients are expressing more creativity and spontaneity, and especially a willingness to try new services.
  • Clients are booking standing appointments as far out as a year.
  • Clients are seeking low or bald haircuts to spend less on maintenance.