EP8. Why 100% Natural Claims Could Get You Into Trouble

Welcome to the Formula Botanica Green Beauty Conversations podcast. To find out more about our award winning online organic cosmetic science call head over to formulabotanica.com My name is Gemma and I'm the business and relationship manager at Formula Botanica. And this week Lorraine and I are discussing a recent spate of lawsuits filed against natural and organic brands for describing their products and the ingredients they use as natural. We talk about why this issue is important for the green beauty industry as a whole moving forward and the steps that you can take to protect yourself and your brand. Enjoy. Hello and welcome, Lorraine.

Hi, Gemma.

So we've got another juicy topic to discuss this week, haven't we?

We do, and I'm really looking forward to this one because this is something that I think builds upon our very first podcast that we released recently. So I'm really excited to talk about it.

And in fact, you've been going on about this all week, haven't you?

Yeah, well, I've, you know, I've got this idea in my head and I want to run with it. So I think something that needs to be explored and something that needs to be discussed and it builds upon the discussion we had recently on what does natural skincare mean? So I think it's a really important topic for our listeners.

I agree, I agree. And it's, and it's one that I think needs to be talked about a bit more. So not to keep you all in suspense, a few days ago, or maybe, yeah, more than a few days ago, we posted a article up in our online forums about natural skincare brands that had been sued for making what was considered false claims about their products being natural. And it generated quite a lot of discussion amongst our community members. But more importantly, it. Well, not more importantly. Additionally, it generated a lot of discussion amongst the Formula Botanica team about what this means for this, the indie formulating community and the green beauty movement as a whole. And this is where I wanted to start. Our first question was to ask Lorraine why you found it so interesting and, you know, why is it so relevant to our communities at the moment?

Well, that's a great question. Well, recently the New York Times and the Washington Post and probably a few other media outlets as well, published articles about the prevalence of lawsuits against companies that make natural claims. So over the last decades, of course, we've seen more and more lawsuits happen with food companies who are making claims about their ingredients and about the health benefits of their foods. And we've seen quite a few companies go to court over that. But that is now starting to spill over into the beauty industry and the cleaning products industry as well. And of course this has ramifications for indie beauty brands and green beauty fans. So I think it's a really interesting topic to explore a bit more because we're starting to see companies get taken to court for using one synthetic ingredient in their formulation, or using naturally derived ingredients in their formulation, or even nature identical ingredients. And if you want more of an explanation about those two terms, then obviously go and have a listen to our our first ever podcast on what natural skincare means. So I think this is really important for green beauty brands because if you're out there, you're using ingredients that you feel are natural, but someone else does not agree with you, there is a risk in the future that you could potentially end up in court. And I don't want fear monger, but I think it's something that people need to be aware of because if you have that level of awareness, then you can go about preventing it. And I think that's really what we wanted to talk about today.

So let's have a look at a couple of examples that really piqued our interest over the past week.

Yes, well, I delved back into the archives and had a look at some of the lawsuits and problems that have occurred over the last few years. And I think it probably all started. I may be wrong on this, but maybe some of our listeners will correct me. But back in the US in April 2016, the Federal Trade Commission, who deal with protecting consumers, they issued four complaints against four different, possibly even five different companies who were pitching their products as all natural or 100% natural, but actually included synthetic ingredients. We're talking about hand and body lotions and moisturizing gels and sunscreens and faces, face sticks and shampoos and lots of sunscreens. And they made the point that, you know, you're calling your product all natural, but actually it contains phenoxy ethanol or polyethylene or dimethicone or any of these synthetic ingredients that obviously these brands have chosen to include in their formulation. So the ftc, the Federal Trade Commission, went to these companies and said, you can't make these claims because your product isn't all natural, actually be able to back this up. And they barred them from making misleading claims in the future about ingredients, about the compositions of their formulations, about the environmental or health benefits of their formulations. And they said you might even need scientific evidence to back up your claims. So I think this is really where it started. And at the time the FTC said, you know, if you advertise your product as all natural or 100% natural, you have to undertake a compliance check on your product and actually make sure that that's true. I think the question is, you know, what if you're using a naturally derived ingredient? What if your ingredient is nature identical? It's chemically identical to the one that you'd find in nature, but it was made in a lab. Where do you sit in this legal no man's land? I don't know. So I think that was the first one that piqued people's interest and we certainly shared that online when it came out a couple of years ago.

Yes, we did. And it's interesting that you mentioned that because I was at a, an event recently and there was a lot of natural and organic brands in the natural and organic sector of the event who were using phenoxy ethanol to preserve their products.

It's a very common preservative. It's not one that we use actively in our courses because we only use natural ingredients or naturally derived ingredients, but it's very common in the industry because it is a very effective preservative. And that's the issue, really. People, responsible brand owners are saying, right, well, I want to make sure my product is correctly preserved, so I'm going to be be okay with using a synthetic preservative. And that's their choice. But then if you then say my product is natural or 100% natural, or make all sorts of claims about it, you may end up in court. And that's the sort of scary thing about cosmetic claims really is you never entirely know what might happen. If you live in a particularly litigious society where these things are being investigated and class action suits are being brought against companies, there's a real risk associated with that, definitely.

Let's talk, you've mentioned class action suits. Let's talk a little bit about some of the class action suits that recently came to our attention.

Yeah, there was one last year against a company called Kiss My Face who had been, well, allegedly falsely labeling their body lotion and body washes as natural when in fact they contain synthetic ingredients. So they're another example of a brand using synthetic preservatives in their formulations. And to my knowledge, they weren't saying they were 100% natural or all natural. They were in fact saying that their products would nourish naturally and were naturally effective. So you can see that's where marketing terminology comes in and people with the marketing People behind their company were actually using terms that they thought were acceptable, but they were obviously still taken to court over it. Now, I'm not entirely sure where this lawsuit ended up. I have been trying to find out more information, but looking at the formulations on their website, the only synthetic ingredients that they had were their preservatives. So you can see that just by choosing that one small preservative, which is present in less than 1% of your total formulation, potentially it may still end up in some kind of class action lawsuit, which is quite scary to see, really.

Yeah. And also maybe some of these issues can fuel the fear around using preservatives in products.

Yeah, absolutely. And I think that some brands are already very nervous about preservatives. And we see some brands, particularly over in North America, not actually list their preservatives on their labels because they don't want to upset their customers. And I suppose all of this just drives more fear about preservation, which isn't a good thing. And the one thing the New York Times article pointed out was that some of these law firms are actually what they call robo, filing lawsuits where they're effectively just sort of copy and pasting them nearly identical allegations into complaints against multiple companies because they obviously see an opportunity to make money here and they're trying to find complainants who can, who can help them file these lawsuits. So it's a little bit scary to see this litigious society spilling over into the beauty world.

Yeah. And there was another example as well. Was it Credo Beauty?

Yes, they had a class action lawsuit filed against them in September last year. So Credo Beauty are quite a well known bricks and mortar company. I think they sell online as well in the US and they're very much about natural. And so this class action lawsuit was filed against them for allegedly falsely marketing cosmetics and skincare products as being 100% natural, when, according to the complaint, they contain synthetic, non natural ingredients. Now, I have to hasten, I have to add, that the case was voluntarily dismissed with prejudice and we don't know the reasons for that. They weren't disclosed. That was a couple of months later. But. But when I went to have a look at the actual products that were mentioned in the class action lawsuit, some of them didn't even contain natural synthetic ingredients. So some of them actually contain naturally derived ingredients. And some of them, I have to say, would be quite similar to the products that our Formula Botanica graduates and students would be making. So I was a little bit alarmed to see that. And I Can imagine it was a bit alarming for them as well to receive this class action lawsuit against them and probably quite a relief when it was dropped. Now, obviously I don't know the ins and outs of it, but you can see that even choosing to use an ingredient that has originally been derived from nature and has undergone some chemical processing in the lab may still get you into trouble in some particular cases.

Yeah, it's interesting. And we've got people in our community that use, you know, the, the idea that you use naturally or naturally derived ingredients as a selling point.

Yes, they do, absolutely. And they're. It's very hard to make 100% natural products as soon as your product starts to contain water. This is obviously also what we talked about in our very first podcast episode, because the moment you start to work with emulsifiers to create a lotion or surfactants to create a foaming product, cleansing product, or preservatives or chelators or any of these necessary ingredients to create a functional skin care, hair care, beauty product, some of them will be naturally derived. So they will have undergone a degree of chemical processing because ultimately you can't walk out into the garden and pick an emulsifier from a tree. Sadly, I really wish that was the case, but it's not. Our community obviously is using these ingredients and most green beauty brands are, unless they're not including any water in their formulations. And in that case it's a little bit easier for them to get away with those all natural claims because your product could theoretically even be 100% organic if it doesn't contain any water.

Yeah.

And the reason we now moving on to the section of, of the podcast where we wanted to discuss about the implications that these sorts of things have for the green beauty movement and our community moving forward. And these are the issues that Lorraine and I have been discussing all week. And you know what, what implications could this have, Lorraine, do you think?

Well, I think in a society where lawsuits are being robo filed against companies, people are going to start looking for loopholes. They're going to start looking for opportunities to take beauty brands to court, and they're going to be looking for claims that are incorrect, claims that are false, claims that they feel mislead customers. And the green beauty industry sadly, does have quite a few of them, as does the whole beauty industry. And that's something that I really wanted to flag up with our listeners. So I think the first thing I really wanted to think about, I want to get people thinking about is this claim about Skin penetration. And I know that quite, I think we're going to record a podcast on this. And I know that quite a few of our listeners have probably seen those memes go around the Internet that say 60% of everything you put on your skin ends up in your bloodstream, which is not true because you can't put a figure on something that complex. But I see beauty brands repeat this stat all over the Internet. I see them put it up on their Instagram accounts, I see them put it up on Facebook and these things go viral because of course, consumers read that, they get alarmed by it. They think, oh my God, 60% of my lip balm is going to end up in my bloodstream. But that's not how cosmetics always work. And it really depends on the health of your skin and the ingredients that are used, delivery mechanism and everything in the formulation. So if anyone says that to you, please point them in the direction of this podcast and the next one will do on skin penetration. But imagine that a company is making those claims and they're effectively telling customers that the products that you'll buy from that company will end up in your body. And imagine that they're saying, oh, it contains this wonderful raspberry seed oil or this amazing shea butter which has all these anti inflammatory product properties to it. Now imagine a customer buying that and thinking your ingredient is going to end up in my body and it's going to give me health benefit. And that I think is actually quite a dangerous claim to make because in a society where people are looking for opportunities, take companies to court, you don't want to give them an opportunity by giving them an incorrect piece of information. So I think that's the first one really, and it scares me a little bit the, the possibility that someone might say, well, you know, I bought your lotion and it didn't give me the health benefits that I'd expected it would when I applied it to my body. So I might take you to court now.

Yeah. And another one that I know that I definitely wanted to mention was related to one of our other podcasts is are you looking for chemical free cosmetics? Because one of the other terms that like to is used a lot in the green beauty movement is chemical free.

Yes, of course. And we recorded our second podcast on what does chemical free actually mean to people? And all chemicals, all matter is a chemical. So when you buy a pot of lotion, it will contain chemicals. If it's chemical free, then it would effectively be a vacuum in a pot. And although we talked about what people actually mean when they say the term chemical free. You can imagine that being taken quite literally. And if someone bought a skin cream off a company and thought it was chemical free and then realized later on that actually the lotion that was contained in there was full of chemicals, you might imagine that a customer could get quite upset by that or that a law firm might see an opportunity there to take someone to court. So again, making these chemical free claims is quite dangerous because it's factually incorrect and the law of course, is based on fact and reason. So you can see another opportunity there for people to be taken to court, which is quite scary, really.

Yeah, definitely. I know that we wanted to. This whole thing might, like Lorraine mentioned in the beginning, it might seem a bit like fear mongering, but actually our purpose was to be able to give.

Advice and guidance to our, to our.

Listeners, to our wider community about, you know, what you can do, maybe moving forward to avoid some of these things, hopefully.

Yes, absolutely. Don't be scared by this because I think, I mean, I run a business, right? I run Farmer and H Botanica. And the one thing that I'm always thinking about is what could go wrong. And that's how I protect our business, by thinking about the next step. And I encourage any business owner to do the same thing because you've always got to think about the future and what might actually happen. And the first thing that I would recommend anyone does is that if you own a green beauty brand, you, you start to think about the terms and conditions on your website. First and foremost, put in there what natural means to you. The second thing you need to do is look at the cosmetic claims you make. If you're saying that your skincare is all natural, go and have a look at it. Is that actually true? Are those ingredients you're using actually all natural? Now, we worked with a company a few years ago who wanted to use benzyl alcohol and they're formula, which is often nature identical and it's often synthesized in a lab. And they actually said to their manufacturer, I will not accept a synthetically derived benzyl alcohol, go and find me a natural one. And the manufacturer, of course, was totally perplexed by this. They were going, what are you talking about? It is chemically identical. But this company was adamant that they would not accept their final formulation unless this particular chemical ingredient had been derived from nature. And the company, the manufacturer, actually managed to do it, which I thought was quite an impressive feat as well. So really go into that level of detail and have a look at your formulations and think, wow, you know, is everything here actually natural? So that's the second thing I would recommend. And then the third thing is talk to your customers about what natural means to you. You have to be open about this. You can't sort of hide it. And as I mentioned earlier, we see some brands hide some of the ingredients off the label. They don't actually mention them all. Now, obviously, this is illegal in every country that has cosmetic regulations, which we also covered in one of our previous podcasts. But some companies do it nonetheless. They think, well, my customer doesn't want to know that I've put preservatives in here, or I don't really want to tell them, so they don't actually put it on the label. But you have to be completely transparent with your customers, because if you get found out, you could get into a lot of trouble with that and it can really damage reputation. So those are my three pieces of advice. Look at the legal terms and conditions you have on your website and make sure that they're in good order. Secondly, go and do a bit of an audit, a health check of all of the formulations that you sell. And thirdly, you look at how you engage with your customers and be really open and transparent with them. Be proud of preservation. Be proud of the ingredients that you've chosen for the particular reasons that you know best. Be open about those.

I think that's really, really good advice. I think it's probably a good time for us to call it an end for this episode. We've covered a lot of complex information and a complex topic in itself, and it's a topic that Lorraine and I are going to keep a close watch on to see how it develops for the green beauty movement.

We are, and hopefully all should be okay. But the more prepared you are as a business owner, the more you can prevent bad things from happening. Future. So I think just be aware of what's happening in the industry. Monitor these things. Follow Formula Botanica. You know, we're often talking about these things on our social media channels, so you can keep up to date with what's happening. And the more prepared you are, the more you can prevent anything from happening in the future, really.

Exactly right. Thanks, Lorraine.

Thank you for having me again.

I really hope that you enjoyed listening to the conversation that Lorraine and I had around some of the lawsuits that are being filed against natural and organic brands, and that it was informative as well as helpful. If you want to find out more about the courses we offer, head over to formulabotanica.com and if you want to weigh in on the global green beauty conversation, head over to our online forum on Facebook, Skincare Entrepreneur Mastermind. You can also find us on Twitter, Instagram and Facebook ormulabatanica. Thanks for listening and thanks for all your continued support.

Sam.