This article is part of Glossy’s “Earth Month” series, highlighting the fashion and beauty brands leading in sustainability and regulatory compliance. The series explores the challenges related to sustainability, including marketing initiatives, preparing for legislation and reporting on commitments.
When it comes to environmental regulatory compliance, beauty and wellness brand leaders have a lot to think about.
Historically, sustainability has been a slow-moving target for these industries and has long been minimally regulated stateside. But thanks to an onslaught of new global regulatory legislation impacting consumer packaged goods, as well as growing consumer awareness and changing values around environmental impact, it’s never been more complicated to be in compliance.
“For so long, ‘clean beauty’ and ‘green beauty’ were just focused on the safety and ecotoxicity of ingredients. We weren’t really talking about the environmental and social issues that are so closely intertwined with a lot of the ingredients we use in everyday products,” said Maggie Spicer, Washington D.C.-based attorney and founder of Source Beauty, a firm specializing in environmental compliance support for beauty and wellness brands. “It’s not just about the packaging, and it’s not just about the ingredients. It’s about everything! There are a lot of challenges in that, but there’s also a lot of opportunity.”
So how can a brand know if they’re in danger of a lawsuit? What is the most important legislation to stay abreast of? And better yet, how does marketing fit in?
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To learn more, Glossy shared frequently asked industry questions with leading attorneys, who provided the advice they share with their beauty and wellness clients. Bonus: To listen to Spicer’s full interview on the subject from Glossy’s weekly LinkedIn live Beauty Debrief, click here.
There have recently been many legal headlines focused on “clean beauty.” What do industry insiders need to know about these cases?
According to the attorneys we spoke to, the answer goes back to the way popular, widely-undefined marketing terms, including “clean,” “natural” and “eco-friendly,” have proliferated across beauty over the past five years.
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“These terms speak to younger consumers, who describe environmental and sustainability concerns as key purchasing drivers. [But] because there is no standard or legal definition of the term ‘clean,’ brands and retailers adopt individualized and sometimes differing criteria for the term, describing products as ‘clean’ based on the exclusion of certain ingredients like phthalates or parabens or formaldehyde-releasers,” attorney Kelly Bonner, an associate at Duane Morris Law Firm LLP in Philadelphia, Pennsylvania, told Glossy.
Here’s why it’s important: “We’ve seen plaintiffs bringing false advertising claims against beauty brands and retailers under state consumer protection statutes, alleging that their ‘clean’ marketing is misleading to a reasonable consumer because the plaintiff interprets ‘clean’ differently,” Bonner said. “For example, in a recent case in the [southern district of New York], a plaintiff asserted that a retailer’s interpretation of ‘clean’ as excluding certain ingredients was misleading because her own interpretation of ‘clean’ meant ‘formulated without synthetic ingredients.’ These cases are very context-driven and often come down to how transparent a brand or retailer is when applying the term.”
We’ve reported on several pieces of legislation set to impact the beauty industry including, MoCRA, EU greenwashing regulation and a California PFAs bill. How can brands keep track of all the forthcoming regulations?
Bonner suggests subscribing and following industry sources like the Independent Beauty Association (IBA), the Personal Care Products Council (PCPC) and FDA. For example, “If you follow FDA on social media, [you know that] it has been very proactive in soliciting industry input to shape MoCRA’s evolution,” Bonner said. “[I suggest following] compliance firms that specialize in tracking regulatory changes, in-house and outside counsel, and even the regulators [through newsletters or social media].”
Greenwashing is a big topic today. How can brands navigate this?
“Well before telling an insincere story lands you in legal trouble, it can alienate your consumer,” said attorney Randi Mason, partner and co-chair of NYC firm Morrison Cohen’s corporate department. “To avoid that risk, start by taking a deep and honest look at yourself: your products, your supply chain and distribution, your labor and employment practices, your DEI record, your carbon footprint. Then convey what you are doing really well to your consumer and take active steps to do better in the areas that need improvement.”
Then, “If you have the resources, you can engage an [environmental, social and governance] consultant to help you do a self-audit,” said Mason. “ESG consultants are routinely used by organizations that are seeking investment from third parties who care about ESG impact and can also be used by operating companies to put together a cohesive story for their most critical stakeholders: the consumers.”
The industry talks a lot about ingredients and packaging, but where do devices fit in here?
“We are seeing an enormous growth in the beauty and wellness space, in terms of devices,” said Kristen Klesh, partner with D.C. law firm Loeb and Loeb. This includes manual devices, as well electronic microdermabrasion, microcurrent, and LED facial masks often aimed at firming and reducing wrinkles. “Not only do all of the claims for these devices need to be substantiated under traditional FTC advertising principles, but it is equally critical to evaluate these devices to determine whether they are regulated as ‘medical devices’ subject to FDA regulation.”
That means all claims, whether environmental or otherwise, should be considered. For example, many “require a robust premarket submission for FDA clearance before they can go to market.” In contrast, other devices “may simply need to register with FDA but no premarket submission is required, and still others are not necessarily regulated at all by FDA,” said Klesh. “It is critical to engage with FDA regulatory counsel on these issues, and we routinely counsel clients at the intersection of the beauty, wellness and device industries.”
California routinely outpaces the FDA and EPA with regulation. What’s on your radar right now that’s happening in the Golden State?
“Prop 65 continues to be an issue for beauty brands, in part because the statute empowers citizens to enforce the Act, permits the recovery of fees and may impose significant civil penalties,” Bonner told Glossy. “There’s been a substantial number of Prop 65 notices of violations in the cosmetics space in the past year.”
“I would also urge brands to be aware of California’s Toxic-Free Cosmetic Act and California’s prohibitions on intentionally added PFAS/PFOS in consumer products like cosmetics, both of which take effect on January 1, 2025,” Bonner said. “Finally, I would suggest that while California typically leads the way, states like Washington and Oregon have recently enacted aggressive cosmetic ingredient bans, suggesting that other states may follow suit.”
Where do you see the biggest issues facing supply chains?
Transparency is where many problems begin. “Ten years ago, I think the supply chain issues were, ‘How do I get materials faster?’” said Spicer. “So now we have a faster speed to market and better access to upstream material suppliers. … Now where we’re at is [that] brands are liable for so many supply chain issues. Honestly, I don’t think a lot of them are really aware of it, and there’s a lot of opportunity there to get a better handle on where your materials are coming from.”
This includes contamination issues and human rights concerns since many raw materials come from the developing world. One solution, Spicer said, is to consider synthetic materials over natural ones. “Sometimes these synthetics are significantly better from an environmental standpoint than a natural [one],” she said. Plus, if a brand has visibility into its supply chain, “you have more business resiliency to understand what is going into your product, how you can shift as the market shifts and how you can keep yourself compliant from regulatory risks either in the U.S. or overseas,” Spicer said. “To me, [transparency] is the biggest challenge, but also one of the biggest opportunities,” she said.
More Glossy Earth Day Coverage
12 eco-focused beauty and wellness brands on their current sustainability challenges
How greenwashing became the fashion marketer’s biggest concern
