Sure, the wealthy might have the luxury to top off their Botox four times a year or drop tens of thousands of dollars on deep plane facelifts, but no one can outwork Father Time. Yes, your skin will lose elasticity, become less radiant and luminous, and you’ll likely earn a couple of age spots — but this is the curse that comes alongside the numerous blessings of being a human being.
So what are you going to do about it? If you’re not ready to step foot in a med spa or be willing to go under the knife, your options are limited to lifestyle changes (arguably the most important), professional non-invasive treatments like lymphatic drainage massages, chemical peels, microneedling, and laser resurfacing, or the more budget-friendly option, anti-aging skincare products. But are those cost-saving products still effective as fountains of youth?
Some have argued – in court – that anti-aging products are ineffective scams and unfairly trick consumers into buying into inflated marketing schemes. I, like many others, wanted to evaluate whether or not there’s even a reasonable case to sue companies who promise anti-aging results, so I went down the rabbit hole of recent related lawsuits and found some juicy tea to spill.
Important note: I’m not a lawyer nor a licensed attorney. I have no legal background, and I cannot offer any legal advice. Any opinions stated in this article are my own unprofessional observations and personal analyses.
Can Dairy-Free “Milk” Actually Be Considered Milk?
Almond milk shouldn’t be called almond milk since almonds don’t lactate, right? That’s what U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb, MD, said in 2018, which raised the question more broadly about whether or not plant-based products could use words like cheese or milk on their labels.
In one instance, Miyoko’s Creamery, a popular dairy-alternative brand from Petaluma, California, sued the California Department of Food and Agriculture (CDFA) after the CDFA ordered Miyoko’s to cease using terms like butter on their packaging. The CDFA’s reasoning was that this practice violated the FDA labeling regulations.
“The FDA has concerns that the labeling of some plant-based products may lead consumers to believe that those products have the same key nutritional attributes as dairy products, even though these products can vary widely in their nutritional content,” said Institute for Justice Senior Attorney Justin Pearson during a 2019 FDA public comment period.
“Consumers are fully aware that almond, soy, and cashew milk were not made by cows,” Pearson stated. “The FDA’s proposed rule not only flies in the face of common sense, but it also violates the First Amendment, which protects food producers’ right to call something what it is.”
Pearson did have a point. Though the data is from 2018, a survey once showed that at least three-quarters of Americans understand the difference between cow’s milk and plant-based dairy alternatives. You can reasonably assume that as the plant-based dairy market has boomed since then, more Americans would get the difference. As a brief aside, the real problem revealed in that survey was that almost three-quarters of Americans also thought that the two beverages (milk and almond milk) share the same nutritional content, despite plant-based alternatives usually lacking in any substantial nutrients.
Almost 75% of Americans thought cow’s milk and plant-based alternatives share the same nutritional content.
Ultimately, Miyoko’s Creamery won the lawsuit, setting the precedent that vegan or plant-based “dairy” products can indeed use the terms dairy or butter in packaging. So what can we learn from this case in relation to anti-aging products potentially confusing customers with the language used to market them?
Look no further than the ice cream brand’s CEO Miyoko Schinner’s statement after winning the lawsuit. She said, “Food is ever-evolving, and so too, should language to reflect how people actually use speech to describe the foods they eat. We are extremely pleased by this ruling and believe that it will help set a precedent for the future of food.”
Fast Food Companies Are Unsurprisingly Big Offenders
If you were to order an Angus Steak & Egg sandwich from Dunkin’ Donuts, you could reasonably assume that there would be angus steak and eggs in your sandwich. In 2017, a resident of Queens, New York, named Chefun Chen sued the fast food company after she received her breakfast sandwich and discovered that there was no cut of steak whatsoever. Instead, she found a beef patty.
This sparked a federal class action lawsuit as Chen felt that Dunkin’ was engaging in false advertising, even pointing out how the commercials and marketing led customers to believe that the sandwich was superior to other breakfast sandwiches and therefore could be sold at a premium.
On its website, the product was listed as containing “the irresistible flavors of Angus steak, egg, and American cheese, served on an oven-toasted bagel,” but Dunkin’ Donuts alleged that they did nothing wrong as the ingredients of their “Angus Steak” are readily available online for consumers to read. It’s worth noting that the ingredient list was Angus beef, a beef flavor marinade, yeast extract, hydrolyzed vegetable proteins, and at least a dozen other ingredients. So is a minced patty a steak?
This lawsuit was hot enough to lead many down the rabbit hole of debating what a “steak” even is.
This lawsuit was hot enough to lead many down the rabbit hole of debating what a “steak” even is, with Food and Wine magazine citing the existence of a Hamburg steak and the fact that a Salisbury steak is actually a ground meat patty topped with sauce.
If it was to fit the USDA’s standards at the time for a steak, it should have been a product that had a “boneless slice or strip of poultry meat of the kind indicated.”
As it turns out, this lawsuit was actually dismissed in 2020. Dunkin’ Donuts is no longer on the hook for potentially deceiving customers into believing they had a cut of steak on their Angus Steak & Egg sandwich.
Turns Out Red Bull Can’t Actually Give You Wings
We’ve all seen the ads and know the slogan well: “Red Bull gives you wings.” One man named Benjamin Carethers took issue with this slogan and sued Red Bull, claiming this marketing move was deceptive and, therefore, false advertising. Meant to evoke the feeling of high energy, getting “wings” from an energy drink was not necessarily what Carethers cared so much about. He understood it was a metaphor, but insisted that because a standard can of Red Bull only contained 250 ml of caffeine (less than one cup of coffee), it was more than just “puffery,” it was “deceptive and fraudulent.”
In terms of being honest with consumers, this case was pretty notable because it would appear that Red Bull had been overpromising their results. Could they really be the most efficient product on the market if it can’t even live up to the caffeine content of your humble cup of coffee? Red Bull conceded to Carethers, and involved customers received $13 million in compensation, but the energy drink brand upheld the company’s convictions.
A standard can of Red Bull only contained 250ml of caffeine (less than a cup of coffee).
“Red Bull settled the lawsuit to avoid the cost and distraction of litigation. However, Red Bull maintains that its marketing and labeling have always been truthful and accurate, and denies any and all wrongdoing or liability,” the company said in an official statement released in 2013. Nevertheless, they didn't want to give up on its popular tagline, so they added a few extras i's to the wings: "Red Bull gives you wiiings."
Similarly, Monster Energy sued Bang Energy over its “super creatine” branding, which promised customers a drink “20 times more effective at reaching the brain than other forms of creatine.” Monster alleged that Bang’s creatine was no different from any other creatine, and, therefore, the company was misleading customers into believing they had a more potent, superior energy drink. Ultimately, Monster won $293 million against Bang, which the jury deemed guilty of false advertising, tortious interference, and a trade secret claim. Since then, Bang has actually had to file for bankruptcy. Clearly, being honest with your customers could make or break your business.
Cosmetic Brands Mislead Consumers About “Clean” Beauty
Shiseido’s BareMinerals makeup line got hit by a class action lawsuit over being falsely advertised as chemical-free despite containing polyfluoralkyl substances, aka PFAs. PFAs are considered to be “forever chemicals,” meaning that once you’re exposed to them, they stay with you. These chemicals have been linked to health complications such as cancer, thyroid issues, liver issues, weakened immune systems, and even low birth rates for babies. Think about how many “natural” or “clean” beauty brands are out there, or even ones using language that evokes chemical-free qualities. As it turned out, researchers at Notre Dame found that over half of all American cosmetics could contain PFAs.
Researchers at Notre Dame found that over half of all American cosmetics could contain PFAs.
A notable example of this is the company Burt’s Bees. A staple brand for many health-conscious consumers due to its “100% natural” packaging claims, Burt’s Bees was hit with multiple class action lawsuits for its products containing organofluorine and PFAs. Is nothing sacred?
Jump onto cosmetic brand Almay’s website, and you’ll see its top four values: clean, hypoallergenic, doctor tested, and sustainable forward. Why, then, was Almay served a class action lawsuit? Three customers took issue with what they considered false marketing: positioning products as clean while actually containing PFAs is “entirely inconsistent with Defendants’ [Almay’s] marketing and advertising.”
Should Anti-Aging Claims Be Subject to Clinical Trials?
Where do cosmetics companies currently stand with anti-aging claims? A few years back, Sunday Riley Modern Skincare was called out for misleading customers with the packaging for lactic acid treatment Good Genes, water-gel toner Martian, and anti-aging cream Bionic. The lawsuit revolved around two women claiming that they felt duped for purchasing the Bionic cream at $125 for a 1.7-ounce product, “as if it were an effective drug.” The ingredients under scrutiny in Bionic included aloe-leaf extract, prickly-pear extract, and copper.
"Like a modern-day snake oil salesman, Sunday Riley … preys on consumers' fundamental fear of aging by marketing the [cream] as if it were an FDA-approved drug that could change the physical structure and function of skin itself," stated plaintiffs Helena Armstrong and Lynn Moore.
According to Armstrong and Moore, Sunday Riley was misleading in the photographs, product descriptions, and labels that made promises like “combatting every anti-aging concern and cause of aging," "prevent and reverse the effects of aging," and "help to extend the lifespan of your skin."
The lawsuit was dismissed, and Sunday Riley now markets products like Good Genes as being “clinically proven to immediately and significantly plump the look of fine lines and boost radiance in just three minutes,” after clinical results were obtained via profilometry analysis.
Some Cosmetic Companies Really Didn’t Get the Memo
In my digging, it would appear that cosmetics company L’Oréal has been one of the worst offenders when it comes to potentially deceptive anti-aging claims. In 2021, two consumers filed a class action lawsuit against L’Oréal due to the fact that they felt deceived for overpaying for the brand’s Collagen Moisture Filler Day/Night Cream and the Fragrance-Free Collagen Moisture Filler Daily Moisturizer.
There was a case to be made because a topical application of collagen may not penetrate skin barriers and properly “smooth wrinkles” or “restore skin’s cushion,” as the label had suggested. L’Oréal unsuccessfully tried to dismiss the claims.
This case could end up similar to the 2014 settlement L’Oréal had to pony up after the Federal Trade Commission (FTC) charged them with deceptive advertising for their Lancôme Génifique and L’Oréal Paris Youth Code skincare products. Génifique was marketed as “clinically proven” to “boost genes’ activity and stimulate the production of youth proteins” that would cause “visibly younger skin in just seven days,” while Youth Code was marketed as a “new era of skincare: gene science,” which could “crack the code to younger acting skin.”
L’Oréal has been one of the worst offenders when it comes to potentially deceptive anti-aging claims.
Génifique was sold at $132 a pop, and Youth Code retailed for around $25, so consumers reasonably felt duped by the unsubstantiated claims that the cosmetics brand was making. Just think about how many bottles of product that people may have gone through without seeing much visible difference at all.
“It would be nice if cosmetics could alter our genes and turn back time, but L’Oréal couldn’t support these claims,” said director of the FTC’s Bureau of Consumer Protection Jessica Rich.
In Terms of the Law, Cosmetics Have a History of Self-Regulation
Our laws for regulating cosmetics actually haven’t changed much since 1938. The Federal Food, Drug and Cosmetic Act passed almost nine decades ago defined cosmetics for manufacturers and consumers as “articles intended to be rubbed, poured, sprinkled or sprayed on, introduced into or otherwise applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance.”
There are a few regulations that have amended and added to the industry’s original standards, such as the Fair Packaging and Labeling Act, which requires that cosmetics have to disclose all ingredients and be truthful and not misleading in packaging. Additionally, FTC can leverage action against companies that may be engaging in deceptive or unfair practices and false advertisements, which could mislead reasonable consumers through purchasing decisions, whether that’s cosmetic companies or not.
Is there a case to be made for higher cosmetics regulation? Solely from a perspective of personal principles, I’d argue that while there are genuinely misleading tactics at play, consumers should arm themselves with as much knowledge as possible before blindly buying products. You don’t have to dive into as much scrutiny as, say, you would while weighing your options for buying one model of car over another, but if you’re going to take issue with the efficacy of a product, you should at least have made an effort on the front end to vet whether or not its claims check out.
Not everyone will make the time or put in the effort to do their own research. Sometimes that’s due to a genuine lack of time, but I’d bet that other times it’s due to sheer laziness (intentional or not!) and impulsive buying. We could all do ourselves a favor and read product descriptions, ingredients, and label warnings with a little bit more scrutiny than we probably do. I know I’ve been guilty of this outside of the cosmetics world, like buying the wrong dimensions of curtain rods.
The cosmetics industry has been mostly self-regulated for a long time. As mentioned, the FDA has authority granted by the Federal Food, Drug, and Cosmetic Act of 1938 to regulate misbranded or adulterated products and further regulation under the Fair Packaging and Labeling Act. Some scholars argue that our approach to regulation should be to protect American consumers from harm. Other scholars believe that inadequate FDA regulation can disproportionately affect women’s health. Additionally, some scholars caution that cosmetics, which often are riddled with endocrine disruptors, need to be regulated because of increased cancer risks, fertility issues, immunological dysfunction, and neurological complications.
Some scholars believe that inadequate FDA regulation can disproportionately affect women’s health.
All that said, let’s not be blind to the fact that over-regulation also poses the risk of “indie” brands never feeling empowered enough to bring their product to market. Think about your favorite small business brands for moisturizers, lotions, essential oils, candles, chemical-free feminine hygiene products, or whatever other item you “shop small.” Imagine the hoops the business owners have to jump through if they just want to sell their product on Etsy or at their local farmer’s market.
It’s hard to find the perfect balance for safety in a free market, but there are also too many benefits of a free market to stifle the American entrepreneurial spirit. The cosmetics industry could continue to be mostly self-regulated in its current state to a more successful degree if consumers were more prepared to put their money where their mouth is.
Clinical Trials Can Provide Credibility, but It’s Simply Impossible Not To Age
There are so many factors at play when it comes to skin aging, from the loss of plumpness to the development of fine lines to skin sagging. Most skincare products that tout anti-aging claims haven’t been around long enough for a woman to have used it and witness successfully turning back her body’s biological clock. Even if you apply a nighttime moisturizer and eye cream every night for decades, how exactly could you prove that those topical products are the exact reason why your skin has aged better than another woman’s skin? After all, some products only promise temporary results, like the viral Peter Thomas Roth eye cream that some women swore could fix under-eye bags within minutes, but only lasts until you wash it off.
You can point to specific ingredients like retinoids, which have been FDA-approved to reduce and prevent acne scarring since the 1970s, that are now thought to also reduce fine lines and wrinkles. But what if you were also eating a collagen-rich diet? Can you prove which one paid off more in the long run? You can point to peptides that people claim are like “Botox in a bottle” because they send signals from your brain to your skin to boost collagen and elastin production. But what if you also regularly smoked cigarettes, thus aging your skin by degrading collagen and reducing skin elasticity?
Experiencing aging looks different on everyone. As another example, if you’re out in the sun more, you’ll rack up sunspots. If anti-aging claims are based on the reduction of sun damage, applying anti-aging skincare is really just a roll of the dice where you hope that the product can outperform your lifestyle choices and genetics. No product will genuinely stop or reverse your aging process. So, based on the lawsuits discussed, which set precedent for companies to be held under tight scrutiny for misleading with deceptive language, I’d wager that an implausible claim for a product to be “anti-aging” could get a beauty company in some serious legal trouble.
By choosing to buy products that use honest marketing and avoiding products that overpromise on unrealistic results, you, the consumer, are holding brands to a higher standard in our capitalist society. Your voice actually wields much more power than you’d think! Sometimes this can be achieved through litigation (such as the case where Monster Energy essentially delegitimized Bang Energy), but there is something to be said about our world becoming a little bit too litigious.
We should continue to put pressure on cosmetics brands through the power of our personal purses and spread awareness when companies make outlandish claims to turn a profit. At the same time, you should never forget that you’re aging every single day and that no topical cosmetic could ever truly be anti-aging, so the onus is on you to make smart skincare decisions if you want to age with grace.
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