Retailers’ Clean Beauty Claims Fuel Consumer Doubts and Lawsuits

In the beauty world, a “clean” product brings to mind one or more of the following features: sustainable, nontoxic, ethically made, cruelty-free, or even vegan.

Such broad associations speak to the appeal of “clean beauty” products: They can make consumers—especially climate-conscious Gen Z and millennials—feel like they’re making the better choice for themselves and the planet. The “clean beauty” market, which is forecast to expand to $15.3 billion by 2028, has grown from its roots in luxury and independent brands to take over shelves of products at mass-market retailers like Target.

But companies’ self-imposed definitions of what they consider to be “clean” has led to doubts about industry claims, fueling consumer-led class actions and raising the legal risk for companies trying to capitalize on product demand. While regulators are eyeing potentially misleading environmental advertising—and some beauty brands are even hoping they’ll clarify what’s “clean”—it’s the courts that will likely be the first to decide when use of the trendy term crosses into a type of greenwashing. […]

Still, the risk of regulatory enforcement for “clean” claims is fairly low, and it’s unlikely that the FTC will home in on the term for now, said Kelly Bonner, an attorney at Duane Morris who advises companies on consumer litigation and enforcement risks, including those in the beauty industry.

“I don’t think the FTC is going to focus so much on ideas of ‘clean’ or ‘natural’ given that it hasn’t defined these terms and it’s still unclear as to what these mean,” she said. “It’s more likely that it will get worked out in consumer protection suits and the courts.”

To read the full text of this article, please visit the Bloomberg Law website.


What’s Driving Beauty Brands to Shutter in 2023?

Duane Morris partners Robert Kum and Cyndie Chang are quoted in the Glossy article “The unseen legal turmoil driving beauty brands to shutter in 2023.”

Despite positive projections about the future of the beauty industry, insiders say brands of all sizes are quietly grappling with unseen legal struggles.

[Founders] blamed, in large part, the California Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Prop 65.

Continue reading “What’s Driving Beauty Brands to Shutter in 2023?”

MoCRA Requires Federal Regulatory Overhaul

On December 23, 2022, Congress enacted the Modernization of Cosmetics Regulation Act (MoCRA)—the first major statutory change to the U.S. federal government’s ability to regulate cosmetics since 1938. Passed with bipartisan
and industry support, MoCRA expands the Food and Drug Administration’s authority over cosmetics, and creates substantial new obligations for manufacturers, packers and distributors of cosmetics intended for sale in
the United States. Here’s what beauty companies need to know.

To read the full text of this article by Duane Morris attorney Kelly Bonner, please visit the firm website,

Post-MoCRA Regulatory Compliance Checklist for Beauty and Personal Care Products

MoCRA, Pub. L. No. 117-328, represents the first major statutory change to the authority of the Food and Drug Administration (FDA) to regulate cosmetics since the Food, Drug, and Cosmetics Act (FDCA), 21 U.S.C. § 361 et seq.,
in 1938 and the Fair Packaging and Labeling Act (FPLA), 21 C.F.R. § 701.3, in 1966.

This checklist outlines key regulatory compliance considerations that are specific to personal care products marketed in the United States following the enactment of the federal Modernization of Cosmetics Regulation Act (MoCRA) on December 23, 2022.

To read the full text of this Lexis Nexis Practical Guidance Checklist by Duane Morris attorneys Driscoll UgarteRick BallAlyson LotmanKelly Bonner and Coleen Hill, please visit the firm website.

US FDA Seeks Head of Human Foods, Looks to Move Cosmetics Work

Duane Morris attorney Kelly Bonner was quoted in an article in Chemical Watch on March 3.

“The US Food and Drug Administration has started its search for a deputy commissioner for its new human foods programme, and plans to move certain cosmetics functions to another part of the agency to advance oversight of the products. […]

The inclusion of cosmetics in the proposed restructuring is “very significant”, said Kelly Bonner, associate with law firm Duane Morris. Continue reading “US FDA Seeks Head of Human Foods, Looks to Move Cosmetics Work”

MoCRA Is Here — Now What? Unpacking Litigation and Regulatory Risk for Cosmetics Brands Following MoCRA’s Enactment

On December 23, 2022, Congress enacted the first major statutory change to the Food and Drug Administration (FDA)’s ability to regulate cosmetics since the Federal Food, Drug, and Cosmetic Act (FDCA). Passed with bipartisan and industry support, the Modernization of Cosmetics Regulation Act (MoCRA) significantly expands FDA’s rulemaking and enforcement authority over cosmetics and creates substantial new compliance obligations for manufacturers, packers, and distributors of cosmetics intended for sale in the United States.

Although MoCRA establishes several new requirements concerning product safety, it provides comparatively little guidance on the kinds of marketing or promotional claims brands can now make about the safety of their products.

To read the full text of this article by Duane Morris attorneys  Rick Ball, Alyson Walker Lotman and Kelly Bonner, please visit the Duane Morris website.

Taking a Bite Out of the Brand?

By Brian Siff and Victoria Danta

Is imitation the sincerest form of flattery? Not according to brand owner Jack Daniel’s Properties, Inc., (“JDPI”), which owns the JACK DANIEL’S source identifiers for alcoholic beverages and other goods – most notably, whiskey.

For the better part of a decade, JDPI has been embroiled in a dispute with toy maker VIP Products LLC, (“VIP”), which makes humorous chew toys that allegedly parody well-known products. The toy shown below is at the center of this dispute, and features elements of authentic Jack Daniel’s® whiskey bottles and labeling, and dog-related puns, such as “BAD SPANIEL,” “OLD No. 2,” and “TENNESSEE CARPET”:


VIP Chew Toy

JDPI Bottle and Labeling

In 2014, JDPI accused VIP of trademark infringement and demanded that VIP cease all sales of the BAD SPANIELS chew toy. VIP then sued for a declaratory judgment, including a declaration of non-infringement. JDPI counterclaimed for infringement and related causes of action, including dilution of a famous trademark. The U.S. District Court for the District of Arizona applied a traditional “likelihood of confusion” analysis to JDPI’s claims, finding that confusion was likely on the basis of evidence that included actual confusion and a consumer survey. Notably, JDPI’s brand licensing program included pet products.

The District Court allegedly erred by not appropriately considering the First Amendment’s free speech protections and specifically, it did not properly consider the idea that the chew toy was a humorous parody, and that it was an expressive work entitled to protection.

In early-2020, the U.S. Court of Appeals for the Ninth Circuit ruled that the toy was, indeed, an expressive work protected by the First Amendment. Thus, VIP’s use of JDPI’s source identifiers was not actionable infringement, dilution or tarnishment. The Ninth Circuit held that the traditional likelihood of confusion test failed to account for the public interest when free speech rights are involved. The Ninth Circuit emphasized the toy’s humorous messages. Ultimately, the Ninth Circuit sent the dispute back to the District Court for further proceedings on JDPI’s infringement claims. Critics point out that the Ninth Circuit was the first anywhere to apply such strong free-speech protections, and that the holding conflicts with decisions from other Courts of Appeals (including the Second Circuit). Furthermore, some argue, the Ninth Circuit’s decision could encourage trademark infringement, by appearing to offer infringers protection if they can allege some minimal “humorous” aspect to their product.

When the dispute then returned to the District Court, the Court ruled for VIP, finding that the chew toy did not infringe upon JDPI’s rights, and that it was creative expression was protected by the First Amendment. However, the District Court encouraged the parties to appeal to the SCOTUS, as it believed the Ninth Circuit’s decision would create significant uncertainty.

Initially, SCOTUS rejected JDPI’s Petition for Certiorari, but JDPI was persistent; with the further urging of the District Court, JDPI repetitioned SCOTUS, and SCOTUS agreed to hear the appeal in late-November 2022.

The issues SCOTUS will resolve are as follows:

1) “Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims.”; and

(2) “Whether humorous use of another’s mark as one’s own on a commercial product is ‘noncommercial’ under 15 U.S.C. §1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act.”

Various third parties have filed amicus briefs on the issue, including the American Intellectual Property Law Association, (AIPLA); Campbell Soup Company; Levi Strauss & Co. and Patagonia Inc.; and the International Trademark Association, (INTA).

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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