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

Clean Beauty…or Dirty Business?

The “clean” beauty movement is picking up steam. Health-conscious consumers are paying more attention to ingredients applied to their bodies and are looking for products made without harmful chemicals. In response to the demand, some popular cosmetics companies are now offering so-called, “clean” beauty lines. Companies considering joining this trend should take into account the substantial legal risks.

A look at the food industry’s use of the adjectives like “natural”, “clean”, “simple,” and “wholesome” illustrates the kinds of risks the beauty industry may face. When consumers began paying more attention to ingredients, companies began marketing their products with these health driven adjectives. However, this led to a barrage of class action lawsuits for false advertising under state consumer protection laws as plaintiffs lawyers argued that the claims made on the front of the label did not match the ingredients on the back of the label.

The food industry started to use the word “clean” after the use of “natural” resulted in a barrage of consumer lawsuits. As it turned out, however, the alternative claim also resulted in consumer class action lawsuits. The theory behind these suits is that “clean” is just a synonym of “all-natural” and signifies to consumers the absence of any synthetic chemicals. Similarly, it is argued that “wholesome” and “simple” are misleading consumers as to the real nutritional value of food products. This is at best an idiosyncratic view, not backed by legitimate consumer evidence. However, merely making the allegation is sometimes sufficient to survive a motion to dismiss, where the court must consider whether “no reasonable consumer” could share the plaintiff’s alleged interpretation.

Adding to the complexity is the difficulty of placing a sufficiently prominent and clear explanation, or definition, for such adjectives in an unavoidable location where the plaintiff cannot reasonably allege she failed to notice it. Courts have sometimes held that consumers need not be expected to turn around the bottle or package to read textual information on the back label before purchase.

We have seen false advertising claims creeping into the skincare industry as well, and this, coupled with the history of the food industry, should put the beauty industry on notice of the legal risks. For example, just last month, a lawsuit was filed in California State Court against the makers of Coppertone sunscreen. Prescott, et al. v. Bayer Healthcare Pharmaceuticals Inc., et al., No. 5:20-cv-00102 (N.D. Cal. filed Jan. 3, 2020). The suit alleges that Coppertone deceived consumers by labeling certain sunscreens as “mineral-based” when in fact chemicals make up a significant portion of its active ingredients. The plaintiff’s theory is that the headline “mineral-based” claim suggests to consumers that the product protects skin from sun damage exclusively with minerals.

In the “all-or-nothing” world of the plaintiffs’ lawyers, any ingredient call-out or characterization creates legal peril by negative implication. If the label says “clean,” the product can contain no synthetic substances. If the label says “plant-based,” the product should not have any synthetic or animal components – even if trivial in amount. Plaintiffs are routinely sending products to labs for rote chromatographic analysis, and the tiniest detectable amounts of disfavored chemicals can trigger lawsuits. In California, the consumer protection laws include California’s Unfair Competition Law, False Advertising law, and the Consumer Remedies Act. Companies making sales in California also need to be mindful of Proposition 65 which requires warning labels on products that contain any enumerated chemicals identified by the State to cause cancer, birth defects, or reproductive harm.

Since there are no regulations mandating the definition of such descriptive terms on cosmetic labels, these definitions (e.g., “clean”) can vary from company to company. The beauty industry should heed caution when using “clean” beauty claims. In order to avoid consumer confusion— and ultimately litigation— companies should define “clean” in a way that they can, and do, meet, and that definition should be available at the point of sale.

The Campaign for Safe Cosmetics

We at The Real Hair Truth were more than happy to endorse the Campaign for Safe Cosmetics on there recent cosmetics safety discussion draft bill. They had 120 organizations endorse the letter. Including The Real Hair Truth and Bravo to them for the well done job they constantly do for the consumers of this country!

Since 2004, the Campaign for Safe Cosmetics has used smarts and sass to pressure the cosmetics industry to make safer products.

The Campaign for Safe Cosmetics coalition, a project of Breast Cancer Prevention Partners (formerly the Breast Cancer Fund), works to protect the health of consumers, workers and the environment through public education and engagement, corporate accountability and sustainability campaigns and legislative advocacy designed to eliminate dangerous chemicals linked to adverse health impacts from cosmetics and personal care products.

The Campaign has educated millions of people about the problem of toxic chemicals in cosmetics, which has led to an increased demand for safer products in the marketplace. Now hundreds of cosmetic companies fully disclose ingredients and avoid the use of cancer-causing chemicals, reproductive toxicants and other unsafe chemicals, demonstrating these practices are not only possible, but profitable. Retailers, too, are becoming part of the solution by requiring the national brands they sell to eliminate chemicals of concern and practice a higher level of ingredient transparency.

There is no doubt that the multi-billion dollar cosmetics industry is safer now than before the Campaign was launched. But there’s still more work to do to get toxic chemicals out of the cosmetics we use each day. Bravo!!!!

Read More about there Bill!

15 March 2018 Campaign for Safe Cosmetics Public Comment on HELP Cmte Cos Safety Discussion Draft(1)

Are Your Favorite Retailers Taking Action on Toxics?

Taken from the website, Mind The Store.

In our second annual report card on toxic chemicals in consumer products, the Mind the Store Campaign found that one-third of 30 major U.S. retailers are leaders, but two-thirds are seriously lagging behind. Find out how the stores where you shop are (or are not) tackling toxic chemicals in everyday products. Click on any of the logos below to learn more about each company, read our report, and raise your voice as a consumer!

Ulta Beauty earned a grade of D-, scoring 18.5 out of 135 possible points, ranking it 20th out of 30 retailers evaluated. Ulta Beauty has started taking some actions to address toxic chemicals in the products it sells, but still has much room for improvement. The company earned points for making efforts in recent years to require the suppliers of its private label products to eliminate chemicals of high concern identified in a private list that goes beyond legal requirements as new products are added and existing products reformulated. This list includes prohibitions on parabens, formaldehyde releasing preservatives, BHA & BHT, alkylphenol ethoxylates, and toluene and xylene in nail products. Unfortunately, Ulta has made little of this information public, only sharing limited, non-quantified information with us for the purposes of this report. While it labels its reformulated products as “free from” specific chemicals, this information is not readily searchable on its website or displayed in store, making it difficult for consumers to identify safer products. Ulta does not appear to be taking action with suppliers outside of those producing its private label brands.

Opportunities for improvement: Ulta can make progress by making more information publicly available, setting public and quantifiable goals with clear timelines for reducing and eliminating chemicals of high concern, and starting to work with suppliers other than those of its private label goods to reduce chemicals of high concern. Ulta should also become a signatory to the Chemical Footprint Project and pilot it with key private label suppliers. Since the U.S. Food and Drug Administration already requires disclosure of ingredients on cosmetic products, Ulta should go beyond compliance with this requirement by working to disclose the ingredients in fragrances and close other loopholes in the mandatory labeling requirements to demonstrate a greater commitment to transparency.

Illegal Cancer-Causing Chemicals Found in Nearly 100 Shampoo Brands! Oh My Lawd!

The Real Hair Truth

Cocamide Diethanolamine (cocamide DEA), a controversial ingredient found in body care items, has landed four personal care manufacturers with a lawsuit in California.

The Center for Environmental Health filed the suit after discovering the presence of cocamide DEA, the foam stabilizer and voluminous, in shampoos and soaps. In the state of California, Proposition 65 requires manufacturers to warn consumers over the risks of certain substances. Cocamide DEA is on that list because it is a suspected carcinogen. It was banned in the state last year after a study found it caused cancer in laboratory animals.

Some of the products that contain high levels of the illegal chemical are sold under well-known companies such as Colgate Palmolive, Paul Mitchell, and Prell. Lab tests also found the carcinogen in children’s products, such as a store brand bubble bath from Kmart, and a shampoo/conditioner from Babies R Us. Other store brand products that contain the carcinogen came from Trader Joe’s, Walmart, and Kohl’s.

Unfortunately, manufacturers can put any toxic chemical they want into shampoos because  the FDA allows all sorts of chemicals to be used in these products, including chemicals that are known carcinogens and that contribute to liver failure and nervous system disorders. How’s that for protecting public health?  NADA it won’t change? Get over it! I guess profit is more important to them than the health of their customers. After all, it’s safe to say that many of these CEOs and top executives have ties to Big Pharmaceutical stock, so the fact that their products make people sick is a real win-win for their bank accounts.