Bargain stores are known for selling name-brand beauty products for a fraction of the original price. But what if our pursuit of a bargain comes at a much higher cost than we thought? Allegedly, it’s believed that these stores don’t trash out these used items. But instead, they just put it back on the shelf for the next customer to purchase. A customer told me, she bought three “untouched” beauty products—two Sephora eye shadow palettes and Truly Beauty’s Moon Jelly face mask—tampered with them at home, then attempted to return the items to see if the store would resell them.
In the interview she told me that when she walked up there, and I told them that I wanted to buy these items, I asked the [store assistant] if it was OK to return these items,” Natalia said. “And she said that I can return these items as long as they’re untouched, that I can open them, look at them, but I can’t touch them. And I have 30 days to return them.” Cool she thought to herself. But here is the kicker in this whole revelation.
When it came to returning the tampered products, Natalia claimed that while the shop assistant “went to look at the items,” they “[gave] up halfway and [didn’t] even bother looking at the items.” “She [didn’t] even open them,” Natalia added. “Just put them to the side and [gave] me my money.” The next day, Natalia filmed herself returning to the store and found all three items back on the shelf. Upon inspection, she confirmed that the items on the shelves were the exact same ones she returned. Sad isn’t it everyone. And this happens a lot at other department stores, so check you products before purchasing them. Sanitation is a must when applying makeup to the skin.
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.
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.”
On September 14th, California Governor Jerry Brown signed into law the Professional Salon Products Labeling Act (AB 2775). Previously, ingredient labels were not required on professional salon products, leaving workers and consumers in the dark about harmful ingredients. Thanks to AB 2775, companies that sell professional nail, hair, and beauty salon products in California are now required to list ingredients on product labels. As companies move to comply with this new labeling law, the impact will be felt across the country. About time everyone!
Salon workers, who are overwhelmingly women, are exposed to a broad array of very toxic chemicals in the nail, hair, and beauty products they work with every day. They usually don’t have access to information about the toxicity of these products because professional beauty product ingredients aren’t required by law to be labeled.
The California Professional Cosmetics Labeling Requirements Act (AB 2775) co-sponsored by BCPP requires an ingredients list on professional cosmetic product labels. This bill gives nail, hair and beauty salon workers vital information about the chemicals they are exposed to day in and day out. On May 30, 2018 AB 2775 passed the CA State Assembly with unanimous bi-partisan support (76 to 0). On August 24, 2018 the bill passed the CA State Senate again with overwhelming bi-partisan support. California Governor Jerry Brown signed AB 2775 into law September 14, 2018.
Nail and hair salon workers, who are overwhelmingly women, are exposed to dangerous chemicals in hair dyes, straighteners and relaxers, make-up and nail products. In California, this means nearly a half million licensed nail and hair salon workers are exposed to chemicals like formaldehyde, toluene, phosphates, and other chemicals linked to cancer, reproductive harm, respiratory, and neurological harm every day. Several studies have found elevated rates of breast cancer among hairdressers and cosmetologists. In fact, the International Agency for Research on Cancer lists “occupational exposures as a hairdresser or barber” as a probable carcinogen[1]. Studies show hair dressers experience an increased risk of miscarriage, giving birth to low birth weight babies, neurological conditions such as Alzheimer’s. Nail salon workers suffer negative impacts to maternal and fetal health as well as respiratory harm. Currently, manufacturers must list ingredients on the labels of cosmetics sold at the retail level—this is good for the people who sell, buy, and use those products. However, the ingredients in professional cosmetics do not have to be listed on product labels. This lack of transparency makes it impossible for beauty professionals to make informed choices about the products they use and how to protect their health.
California Assembly Bill 2775 (CA AB 2775) gives salon workers the information they need to protect their health. While federal regulation requires the labeling of ingredients in beauty and personal care products marketed to consumers and sold in retail settings, there is no equivalent disclosure requirement for products used in professional salon settings including nail, hair and beauty salons. This lack of transparency prevents salon professionals from getting the information they need to protect themselves and their clients from unsafe chemical exposures. Introduced by Assemblymember Ash Kalra, AB 2775 requires manufacturers of professional cosmetic products sold in California to provide a full list of ingredients on products starting July 1, 2020, excluding fragrance and colorants. BCPP co-sponsored California Assembly Bill 2775, introduced by Assemblymember Ash Kalra, along with Black Women for Wellness, the California Healthy Nail Salon Collaborative, and Women’s Voices for the Earth. The bill has broad based support from nearly 3 dozen leading NGOs including American Cancer Society Action Network, American College of Obstetricians and Gynecologists, NRDC, Clean Water Action, and Consumer Federation of California. AB 2775 also has the support of various industry trade associations and a leading multinational cosmetics company including the Personal Care Products Council, the Professional Beauty Association, California Chamber of Commerce, and Unilever.
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