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Advertising, Marketing & Promotions:
7th Edition: Trends in Marketing Communications Law

FDA >> How “Natural” Is That Cosmetic? Legislators May Decide.

October 6, 2020

Consumers are becoming increasingly savvy, even as the retail landscape is constantly evolving with new categories and sub-categories. In the cosmetics space, new independent brands have joined an already crowded field, while established cosmetic giants are expanding existing offerings to appeal to different market subsets. “Natural cosmetics” and “cruelty-free cosmetics” are two areas that have seen a rapid proliferation of product offerings, and, concurrent with such new developments, legal regulation is also endeavoring to evolve quickly.

Food and Drug Administration (FDA)-regulated products which are labeled as “natural” have been the focus of many class action lawsuits, as well as several Federal Trade Commission (FTC) enforcement actions in recent years. One of the key uncertainties related to the use of the term “natural” on labeling or packaging is that there is no FDA or FTC definition of the term. FDA guidance has indicated that “natural,” at least as related to food products, means that “nothing artificial or synthetic (including all color additives, regardless of source) has been included in, or has been added to” a product that would not normally be expected to be in the product.

As it relates to cosmetics, the FDA has remained silent, leaving cosmetics companies to try to chart their own course in the naturals space, with the FDA’s food guidance serving as a somewhat inadequate map. However, several pending and recently enacted laws seek to address this void.

The Natural Cosmetics Act, a bill introduced in the House of Representatives (the House) in late 2019, seeks to clarify the meaning of “natural” cosmetics. Among other things, the bill would require that a product labeled as “natural” include 70% or more of natural ingredients, excluding water, and with some exceptions, only use naturally-derived ingredients. The bill would also prohibit the use of the word “natural” if the product was made using certain processes.

In the cruelty-free legislative space, the California Cruelty-Free Cosmetic Act took effect on January 1, 2020 and is one of the first successfully-passed laws in the United States that tackles the role of animal testing in cosmetics products head-on. The law prohibits selling cosmetics that have been tested on animals or contain ingredients that have been tested on animals (with several narrow exemptions).

Along with the Personal Care Products Safety Act, introduced in the U.S. Senate in 2019, and the Safe Cosmetics and Personal Care Products Act, introduced in the House the same year, these new laws have the potential to greatly change the landscape of cosmetics regulation, providing concrete guidance in these areas for the first time.

Key Takeaways:

  • Interest in “natural” and “cruelty-free” cosmetics is growing and both state and federal legislatures have taken steps towards implementing a more robust regulatory framework.
  • Using words like “natural” or “cruelty-free” may leave marketers open to an increased risk of class action litigation, without statutory law to help bolster their claims.
  • Companies should continue to review all cosmetic packaging and substantiation through a cautious lens in order to ensure compliance with current state and federal legislation.