While regulatory oversight for cosmetics remains relatively light compared to other FDA-regulated sectors, manufacturers increasingly find themselves expending effort defending against consumer class action suits asserting claims about allegedly unsafe ingredients and misleading marketing. The cases identified in the attachment to this post and assessed below represent a cross-section of recent litigation that, viewed collectively, reveal notable patterns in how these challenges emerge and proliferate in the current litigation landscape.
The Real Cost: Defending Against the Claims
A key takeaway arguably stems not from the outcome of recent and ongoing cosmetic product litigation—but rather, from the mere existence and sheer number of these lawsuits. Even successful case defenses impose substantial financial and reputational costs. Legal fees, management time, any discovery obligations, and potential negative publicity accumulate long before resolution. For many manufacturers, the expense and distraction of defending a class action may represent the primary litigation risk, regardless of a case’s merits.
Category Targeting: When Lightning Strikes, It Strikes Repeatedly
Once plaintiffs’ attorneys identify a potentially successful allegation related to a specific product type or claim that can be broadly applied, similar lawsuits tend to follow rapidly. This pattern—where “copy-paste” complaints may be filed against multiple manufacturers—repeats with PFAS in waterproof mascara and heavy metals in toothpaste, among other product categories, but is perhaps best exemplified in the cosmetic industry by the litigation concerning dry shampoo products. Following publication of laboratory test results conducted by Valisure, an independent laboratory, that allegedly found benzene contamination in dry shampoos, manufacturers across the industry found themselves defending against nearly identical allegations, often based on identical third-party testing data.
This trend means that even companies that invest heavily in product safety may face litigation simply because they operate in a category that has attracted the attention of plaintiffs’ attorneys. When one company becomes a target, competitors offering similar products often follow.
The Perils of Vague and Unqualified Claims
Among the most legally vulnerable marketing strategies are broad, undefined claims that invite multiple interpretations. Terms like “clean,” “natural,” “non-toxic,” and “safe” carry significant appeal to consumers but lack standardized regulatory definitions.
The litigation landscape reflects this vulnerability. For instance, lawsuits challenging “clean” and “natural” claims have burgeoned, particularly when products contain detectable levels of PFAS or other arguably synthetic chemicals that consumers might not expect in “clean” products. Furthermore, the outcome of such cases is uncertain; in adjudicating these claims, courts have reached varying conclusions depending on how companies define these terms and qualify their claims.
The fundamental principle here is well-established in advertising law: marketers are responsible for substantiating all reasonable interpretations of their claims, not merely the interpretations they intend.
The Role of Independent Testing
A notable development in recent cosmetic litigation is plaintiffs’ counsel’s reliance on product testing. Class action complaints increasingly cite actual product testing results from independent laboratories or academic research rather than relying on mere allegations or theoretical concerns. These tests frequently screen for contaminants that may not be intentionally added ingredients but rather appear as a result of manufacturing processes, degradation, or environmental contamination.
This testing-driven litigation poses particular challenges because contamination can occur at multiple supply chain points—benzene in aerosols has reportedly been traced to propellant suppliers rather than formulation choices—yet manufacturers may bear the legal and reputational exposure.
The Ingredient Threshold Challenge
A newer category of litigation focuses on products containing ingredients—whether intentionally added or present as contaminants—at levels plaintiffs allege exceed acceptable thresholds. These cases raise complex questions about what constitutes “safe” levels of various substances and who determines those thresholds.
Courts have reached differing conclusions on these threshold-based claims. Some have dismissed cases where plaintiffs failed to demonstrate that detected levels pose actual health risks or that defendants had legal obligations to disclose trace contaminants. Other cases, however, have progressed past initial motions to dismiss, particularly where plaintiffs can point to regulatory guidance or purported scientific consensus suggesting the levels detected are problematic.
Navigating the Evolving Landscape
This litigation environment operates against a backdrop of increasing regulatory complexity. Multiple states have enacted or are considering restrictions on specific ingredients (see our earlier blog post, Beauty Has Boundaries: A State-by-State Review of Cosmetic Ingredient Restrictions), while the Modernization of Cosmetics Regulation Act (MoCRA) has expanded FDA’s oversight authority over cosmetics. Meanwhile, major retailers have implemented their own product standards, creating a patchwork of requirements that manufacturers must navigate.
FDA warning letters, state bans, and retailer standards all provide plaintiffs with ammunition, as attorneys leverage regulatory concerns to argue manufacturers should have known about potential product risks.
Given these trends, manufacturers would be well advised to approach cosmetic marketing and formulation with heightened attention to several key considerations.
First, scrutinize supply chains and manufacturing processes to identify potential contamination risks. Second, develop precise marketing claims that clearly express the intended message and ensure robust substantiation. Third, stay informed about emerging testing methodologies and scientific concerns regarding ingredients and contaminants. Finally, recognize that even strong legal defenses may not prevent the expense and disruption of litigation. Risk management requires not only evaluating the merits of potential claims but also considering the practical costs of defending them—and making strategic decisions about product formulation, marketing, and testing accordingly.