When Ingredient Alarm Leads to the Courtroom

By: Katie Schaefer Cosmetics & Toiletries magazine

Posted: March 28, 2008, from the April 2008 issue of C&T Magazine.

The personal care industry has experienced growing consumer interest in the ingredients its products contain. This interest has resulted in better responsibility and safety among cosmetic manufacturers; however, it also has produced elevated concerns over potentially harmful ingredients.

On Oct. 11, 2007, the Campaign for Safe Cosmetics (CSC) sent out a press release claiming that 61% of the 33 lipsticks it tested contained detectable levels of lead. The Personal Care Products Council, formerly the Cosmetic, Toiletry, and Fragrance Association, responded to the CSC’s claims, stating that lead is naturally found in air, water and soil, and that the small traces found in lipstick were completely safe. Nonetheless, consumers picked up on the report and were alarmed; and the lawsuits began.

Ken Kliebard, a partner at the law firm Howrey LLP and a product liability expert, witnessed an influx of class action lawsuits against cosmetic manufacturers claiming injury from unsafe levels of lead in lipstick. Here, he explains why such lawsuits can be filed based on little evidence.

Although an arduous task for consumers, filing such suits is possible. This underlines clearly the importance of communication, from understanding the ingredients used in a formula and their safety implications, to marketing the right message about what a product can do.

Class Action Suit Defined
A class action lawsuit is first filed with one or several plaintiffs on behalf of a proposed class. In the lipstick cases, individuals are suing on behalf of all citizens of the United States. “The courts have generally not been receptive to this type of case,” commented Kliebard. “The most significant obstacle is establishing that these cases should in fact be class actions.”