Organic Labeling of Cosmetics under Scrutiny in California
The Center for Environmental Health (CEH), a public advocacy group in California, filed suit in the Superior Court of the State of California on June 16, 2011, against 26 cosmetic companies alleging companies sold their products with the aid of misleading organic product labels. CEH, seeking injunctive relief, wants to encourage cosmetic companies to use organic ingredients and ensure that consumers can trust organic labels.
Cosmetics labeled and advertised as organic are subject to several different regulations. The U.S. Food and Drug Administration (FDA) regulates cosmetics under the Federal Food, Drug, and Cosmetic Act and the Fair Packaging and Labeling Act. However, neither of these laws gives the FDA authority to enforce organic claims. The U.S. Department of Agriculture (USDA) regulates the term “organic” as it applies to agricultural products through the National Organic Program (NOP). If a cosmetic is manufactured from agricultural ingredients and is labeled as “organic,” it must meet the NOP standards for certified organic labeling. The Federal Trade Commission (FTC), pursuant to section 5 of the FTC Act, prohibits unfair or deceptive advertisement claims for cosmetics, including deceptive organic claims. Cosmetics sold in California are subject to additional requirements set forth under the California Organic Products Act of 2003 (COPA).
According to the Complaint, CEH claims it found dozens of products made by the 26 defendant companies that are labeled organic, yet contain few or, in some cases, no organic ingredients. Pursuant to COPA, cosmetic products labeled with the term “organic” on the front of the package must contain at least 70 percent organic ingredients. Those products with less than 70 percent may only use the term "organic" on the ingredient list. COPA gives any person standing to file an action to enjoin a party from violating COPA. Additionally, a plaintiff is not required to show injury or damages under COPA in an action for injunctive relief.
Advocates are concerned with the lack of federal cosmetic regulation. Currently, the FDA has a Voluntary Cosmetic Registration Program which allows firms to voluntarily register their facilities and list their products and ingredients. There is no regulation requiring that a cosmetic label be approved prior to use. Advocates were hopeful for the passage of the Safe Cosmetics Act of 2010, which would have increased the FDA’s regulation of cosmetics. However, they were disappointed when the act never made it past the House committee for vote. See our previous report here for more information on the 2010 Safe Cosmetics Act. See our report here on the 2011 Safe Cosmetics Act, which currently in the House committee. With the FDA’s resources focused on food safety and medical device reform, state legislation and lawsuits like that filed by CEH in California state court may be the most immediate and effective means of regulating the manufacture and sale of “organic” cosmetics.
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