January 25, 2023
5 Trends to Watch: 2023 Personal Care Products and Cosmetics Litigation
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- "Greenwashing" Consumer Putative Class Actions. Putative class action lawsuits asserting that personal care products and cosmetics are not "green," "natural," or "sustainable" despite being labeled or marketed as such are likely to continue to increase in 2023. The plaintiffs in these lawsuits may allege that a company's purported "eco-friendly" advertising is false and misleading and caused them to buy a product they would not have otherwise bought at an allegedly "inflated" price that they would not have otherwise paid. Typically, the plaintiffs' claims are styled as violations of state consumer protection statutes, including Section 349 of New York's General Business Law and California's Unfair Competition Law, breaches of express or implied warranties, unjust enrichment, and fraud.
- Privacy Putative Class Actions. Putative class actions taking issue with the employment of technology or software to track users' interactions with a brand or company website and/or otherwise collect information about potential customers will continue to be filed in 2023. These lawsuits generally assert that information about an individual is being captured or collected without first obtaining the user's consent and thus, allegedly violates state statutes and invades the user's privacy rights.
- Consumer Claims Relating to the Purported Trace Presence of Chemicals. Putative class actions relating to the alleged presence of purportedly harmful chemicals (e.g., benzene and per- and polyfluoroalkyl substances (PFAS), etc.) in personal care products and cosmetics will continue into 2023. These lawsuits increasingly allege that a product's labeling or marketing suggesting the product is safe for use or "clean" is false and misleading because of the alleged presence of chemicals, with plaintiffs typically pursuing many of the same state consumer protection and common law claims discussed above. They may also allege purported personal injury or medical monitoring-type claims or claims purporting to seek injunctive relief.
- Litigation Following Reports By Plaintiff-Associated Laboratories and Consumer Advocacy Groups. We expect plaintiffs to continue to leverage reports with purported testing results published by laboratories and consumer advocacy groups associated with the plaintiffs' bar (e.g., Valisure LLC, Emery Pharma) to pursue litigation against companies in the personal care products and cosmetics industry—a tactic previously used with pharmaceutical products. In each of the last two years, such reports included alleged findings of purportedly harmful chemicals in several products, including sunscreen, dry shampoo, and deodorant, prompting immediate putative consumer class action claims against product manufacturers and follow-on medical literature influencing mass tort litigation.
- Litigation Impacts Concerning Expert Admissibility Following Amendments to Federal Rule of Evidence 702. Proposed amendments to Federal Rule of Evidence 702 were unanimously approved by the Advisory Committee on Evidence Rules in 2022 and are likely to take effect later this year, pending approval by the Supreme Court and Congress. The proposed amendments emphasize the court's role as gatekeeper for expert testimony and make clear that the proponent of the expert must establish each of Rule 702's admissibility requirements by a preponderance of evidence. Although the amendments are not expected to become law until December 1, 2023, trial courts are likely to embrace their gatekeeping function throughout 2023 to exclude unreliable expert testimony on key issues (e.g., causation) in cases involving personal care products and cosmetics.
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