Perusing the labels at your typical cosmetics counter or pharmacy aisle can feel akin to reading the menu of options for a smoothie bar. “Antioxidants,” “Aloe,” “Vitamin C,” “Almond extract,” “natural fruit,” and “protein” all appear to be popular options. When it comes to specifics, labels often vary from saying that an ingredient is contained in the product to simply splashing the ingredient name in bold font, unmodified.
Why does this matter from a legal stand point? Just like any other advertising claim, claims about product content require reasonable substantiation, and must not be misleading. The risk in touting a particular product ingredient is often less about whether the claim is literally true, and more about whether it implies a greater amount or performance impact than actually provided.
The highly publicized POM Wonderful LLC v. Coca-Cola Co. case put ingredient claims in the spotlight when POM Wonderful challenged Coca-Cola’s use of the use of the words “Pomegranate Blueberry” on its juice label when the product contained only 0.3 percent pomegranate juice and 0.2 percent blueberry juice. The United State Supreme Court overturned a lower court ruling, and found that POM Wonderful could proceed with its Lanham Act claims. The case was remanded back to the Ninth Circuit where it remains pending – meaning a little ingredient claim may give rise to big money litigation. (For more background on the POM Wonderful case, click here.)
So far, like in POM Wonderful, food products have been the primary target of legal challenges, but nail care products and tanning cream have been the subject of competitor challenges based on the effectiveness of the publicized ingredients, and shampoo and sunscreen have been the target of “natural” claims litigation based on their contents. In-house counsel for cosmetics and personal care companies should take note. If your company’s called-out ingredients are called out, can you stand behind how much cucumber is in your eye cream?