Lawsuits Over “Organic” Cosmetics

Posted in: Legislation & Regulation, Soap & Cosmetic Labeling

dreamstime_xxl_44432762Babyganics is now the last in a long line of cosmetic companies sued for false advertising over organic-type claims.  Last month there were two suits filed against Babyganics, one for falsely advertising and implying their products are organic and one by a mom who alleged that her toddler sustained chemical burns from Babyganics tear-free shampoo.

I wrote a couple of years ago about organic cosmetics and the issues between the FDA and the USDA about whether or not cosmetics needed to comply with the USDA’s National Organic Program.  It appeared then, and still appears now, that cosmetics don’t fall under the NOP regulations.  There were several lawsuits filed against products that were marketed as “organic” but did not comply with the National Organic Program – generally those failed because the NOP regulations don’t apply to cosmetics.

False and Deceptive Marketing

However, that hasn’t stopped several litigants from filing suits for false and deceptive marketing practices. Their claims generally allege that the products imply by their name and marketing that they are “organic” (when they aren’t) and by virtue of those statements the companies are able to command higher prices for their products.
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Here are a couple of examples:

Babyganics

KAS Direct LLC dba Babyganics was sued in September, 2016, in NY Federal Court for false marketing practices, including the name “Babyganic” implying their products are organic, statements that the products are organic or contain organic ingredients,  and the fact that their “mineral-based” sunscreen actually contained synthetic ingredients. (Read the complaint.)

Jason® and Avalon Organics® Products

2016-10-11-organixHain Celestial Group, the company that markets Jason and Avalon Organics, was sued under a false advertising class action lawsuit in May 2011. Again, the complaint was based on the fact that false and deceptive claims of natural and organic ingredients cause consumers to pay more than they would have otherwise. The suit was filed in California and included allegations that their marketing was in violation of several sections of the California codes. (Read the complaint.)

The case was settled in February, 2016, with  Hain agreeing to pay out $7.5 million cash and $1.85 million in coupons. (Read the approved settlement.)  Note that in November 2011, Avalon Organics DID get their products certified as Organic Personal Care Products under the NSF/ANSI 305 Organic Personal Care Products Standards.

Organix Products

2016-10-11-avalonIn August, 2013 a complaint against Todd Christopher International, Inc. dba Vogue International, the maker of Organix skin and hair care products.  Among other things, the complaint pointed out that the US Patent and Trademark Office rejected the defendant’s trademark for the word “Organix” because the description was not limited to the description of goods to personal care products “comprised of primarily organic ingredients”. Ultimately Vogue International changed the USPTO application, but never changed the product formulations which were less than 10% organic.

The complaint also stated that the revenue from Organix products went from $9 million in 2007 (when the brand was introduced) to over $60 million through the first half of 2011, alleging that the meteoric rise was due to their marketing strategy to focus on (deceptive) organic positioning.

The plaintiffs claimed that prominently displaying the word “Organix” on the products and the ongoing practice of advertising, marketing, labeling and/or representing the products as organic when they only contain a minimal amount of organic ingredients is likely to deceive ordinary consumers. (Read the complaint.)

In April, 2014, a a final settlement was approved.  Vogue International agreed to cease using the Organix brand name and the word “organic” in its marketing of its hair care and skin care products unless the products contain at least 70% organically produced ingredients.  Second, they put $6.5 million into a Claim Fund, to be used to compensate members of the class action. (Read the Settlement Agreement.)

What does it mean?

While the USDA’s National Organic Program requirements apparently don’t technically apply to cosmetic products, that doesn’t mean that you can run amok claiming your products are “organic” when they aren’t.

Every state and the federal government have laws in place to protect consumers against unfair and deceptive marketing practices.  In other words, you can’t claim to be selling one thing when you are actually selling something else — especially if what you are claiming makes your product more valuable.

You can’t claim a product is made of gold (and charge for it) when it is just gilt-painted lead.

You can’t claim a product is made of silk (and charge for it) when it is just cheap polyester.

And you can’t imply — by the name or outright claims — that your soap or cosmetic product is “organic” when it isn’t made of all (or mostly) organic ingredients.

If your trade, brand or product name(s) contain the word organic or words that sound or look like organic you might want to reconsider (unless, of course, your product really is made from over 70% organic ingredients).

The lawsuits are already here.  The laws and regulations directly addressing organic claims and implications on cosmetics are likely to come soon.  It’s not a very wise business move to center your marketing around something that could be deemed deceptive or to invest time and resources into marketing and promoting trade, brand or product names that you will have to change down the road.

 

 




11 Comments on “Lawsuits Over “Organic” Cosmetics”

  1. Jackie Thompson

    I’ve been using Organix shampoo for years. After reading this post, I checked the label and it now reads Ogx. I didn’t even notice the name change….

  2. Denise

    I did a lot of reading on using the symbol that says in some form “made with organic ingredients” and thought you still had to be certified to use it, this with regards to personal care products. I have seen this symbol on a locally made product and the website says they are NOT certified. It’s my understanding use of such symbols without being certified can carry a fine of up to $11,000. Can you clarify, because I do believe it is being used as a marketing tool.

    1. Marie Gale

      “Organic” claims for cosmetic products are iffy. You CAN claim that the product is “made with organic ingredients” (provided it’s true) and can state the percentage of organic ingredients. That’s for sure. When it comes to implying that the PRODUCT is organic (either by saying so directly or by the name or the product or company) then it’s iffy. The USDA National Organic Program technically doesn’t apply to cosmetics (unless the company applies to be certified under the USDA NOP). However, they have been (and probably still are) lawsuits over the unfairness of the regulations applying to foods but not cosmetics.

      Just be wary on what claims you make.

  3. Betty L Harmon

    Hi Marie:

    Boy, I went to the FDA government site and it is overwhelming. How can anyone expect someone to read all of that fine print. I am going to get your book and hopefully, it will be a guide for me to keep in mind. How does one know that when they are purchasing oxides, micas, that they are approved? That kind of bothers me.

    I just made a soap that includes Activated Charcoal and is it ok to say that it draws out impurities and that it is like a detox of sorts. Please advise

    Thanks!
    Betty

    1. Marie Gale

      There isn’t anything that I know of that says you can’t use Activated Charcoal in your products, but you can’t CLAIM that it will draw out impurities because that is changing the function or structure of the body … thus making the product a drug under the eyes of the FDA.

  4. MARIO

    HI MARIE,

    THANK YOU FOR ALL THE INFORMATION.

    QUESTION:
    MY BRAND NAME HAS “ORGANICS” IN IT. I DO USE 70% ORGANIC INGREDIENTS BUT HOW, AS A SMALL SOAP MAKER, COULD I PROVE SO IF QUESTIONED? BESIDES KEEPING GOOD RECORDS? WONDERING IF I SHOULD CHANGE MY BUSINESS NAME. I DONT MAKE ANY CLAIM ABOUT THE SOAP, EITHER ON THE LABEL OR WEBSITE – JUST THAT ITS HAND-CRAFTED SOAP.

    1. Marie Gale

      You might want to reconsider your brand name. I expect that over time use of “organics” in the name of a product or brand name will cause an issue if the products aren’t actually organic.

  5. Sharon Carter

    Marie, your books are wonderful, if anyone hasn’t purchased them I highly recommend them. The use of colors is confusing. I currently am starting my business with body butters, sugar scrubs and lip balms. I have been testing a strawberry lemonade lip balm using ground freeze dried strawberries as the flavor. I plan to keep all of my products 100% natural. The strawberries leave a particle suspension which I hide with lip safe mica. Is the strawberry considered color? If so is it illegal to use it? What if I choose to add dried herbs to my sugar scrubs?

    1. Marie Gale

      If the color imparted by the herb is significant to the marketability and “consumer acceptance” of the product, then it is a color additive. If the ingredient is there for some other purpose than color AND any color it imparts is “clearly unimportant” (which means that you could sell it the smae if that color wasn’t there), then it’s okay.

      As an aside, do be sure that you do preservative testing if you are using freeze dried strawberries. Once they get wet, (through condensation, humectant qualities of the product or just touching the lips) you have a situation that is ripe for bacteria to grow.

    1. Marie Gale

      That’s correct. If it is an outright claim of “organic” or uses the organic seal, then it must comply with the USDA certification program. Products that are NAMED “____ Organics” or “Organix” or other names that IMPLY an organic product by virtue of the name of the product or the company are in a gray area (about which the lawsuits have been underway).

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