Beauty companies seem to be coming under increasing fire with lawsuits, fueled in part by the rise of TikTok 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’Oréal, 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 proximately” 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 multidistrict 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 TikTok. 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, 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’Oréal 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.”
Bonner agreed that companies should expect more consumer protection, consumer fraud-bases suits. “What it means for beauty products to be clean, natural, nontoxic or safe is the subject of intense debate and absent clear regulatory guidance, it’s going to be worked out in the court.”
In particular, many will be watching how the Sephora suit plays out. Sephora, which is part of LVMH, has filed a motion to ask a federal judge to dismiss the suit and is waiting to see if that will be granted.
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Another factor at play is the Modernization of Cosmetics Regulation Act, known in the industry as MoCRA. Passed by Congress at the end of last year, the ruling is the first major statutory change to the Food, Drug and Cosmetics Act regarding the regulation of cosmetics since the FDCA’s enactment in 1938.
While not as far-ranging as some had hoped, the headline is that the Food and Drug Administration has been ordered by Congress to engage in more regulatory activity of the cosmetics industry. Among the changes, companies will be required to prove the safety of their products and allow the FDA to review related records when the health of consumers may be at risk. As part of this, cosmetics companies will have to register with the FDA, report products and ingredients as well as fragrance allergens, adopt good manufacturing practices and report serious adverse events caused by using products within 15 days.
“There will be affirmative duties that these companies will have to take and report to the FDA and I suspect that we might see an increase based on this,” Alkhazov said, although she added that more beauty lawsuits in general and not just due to MoCRA does not always mean that they have merit. “More suits do not equate to viable claims. These lawsuits are defensible and plaintiffs have a very high bar to establish their claims.”
Gardella was more on the fence when it came to MoCRA. “There are some labeling requirements that are going to take effect and those could impact future lawsuits in terms of beauty companies having to disclose the detailed information about the ingredients in their products,” he said. “But I hesitate to say it will cause an explosion of lawsuits or anything of that sort only because I don’t know how aggressive FDA is going to be in pursuing companies in disclosing ingredients….It’s just too early to tell.”
Indeed, the FDA has yet to announce how it will monitor companies and is expected to make that clearer in the coming year.
What is known, though, is that it won’t have guidelines for what exactly “clean” means, leaving it open to interpretation in the courts.