Unsafe Makeup: What You Should Know about Cosmetics Product Liability

In the U.S. alone, cosmetics is an $89.5 billion industry. Lurking behind its popularity is the danger of injuries — everything from immediate allergic reactions, such as rashes, to chronic and serious health problems, such as cancer or blindness. You may have heard of Claire’s being in the news for allegedly having cancer-causing asbestos in its makeup, though the popular girls’ store has denied claims of its products testing positive for asbestos.

If you are injured by defective cosmetics, you may be able to recover damages with a product liability lawsuit. Most people think cosmetics are heavily regulated, but in fact, there is very little regulation, so you may need to rely on product liability or possibly a breach of contract action in order to recover compensation for your injuries.

If you live in Ohio and think you have been injured by cosmetics or any other product, call our law office immediately to learn your rights.

How are cosmetics regulated?

The FDA regulates cosmetics under the Federal Food, Drug, and Cosmetic Act (FD&C Act) and the Fair Packaging and Labeling Act (FPLA). The FD&C Act defines cosmetics by their intended use, 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.”

This can include skin moisturizers, perfumes, shampoos, hair color, and deodorants as well as make-up products we normally think of as cosmetics such as lipstick, eye shadow, and fingernail polish. Soap is not considered a cosmetic, but rather falls under different regulations.

The FDA Barely Oversees Cosmetics

FDA regulations give very little protection to cosmetics users. To demonstrate this, there is only one page of standards that covers cosmetics compared to 112 that cover food and drugs. The FD&C Act has almost no power to ensure the safety of the products produced by the cosmetics industry.

For example, many will be surprised to learn that the FDA cannot require companies to safety-test their products before bringing them to market or require product recall without the expensive and time-consuming process of taking a company to court. With the exception of color additives, there is no requirement for FDA premarket approval.

“FDA’s legal authority over cosmetics is different from our authority over other products we regulate, such as drugs, biologics, and medical devices. Under the law, cosmetic products and ingredients do not need FDA premarket approval, with the exception of color additives.”

FDA.Gov

FDA Cosmetics Labeling Requirements

Companies are required to label the ingredients of their products, but they may hide any number of ingredients by listing them as “fragrances,” which could simply be various chemicals. The FDA does not have to approve the label before a product hits the market. This may result in misleading labeling, overpromises, and confusion about how the product should be used, all of which may or may not be the intent of the manufacturer.

Voluntary Cosmetic Review Process

Since the FDA does not adequately oversee cosmetics, the industry has a voluntary program called the Cosmetic Ingredient Review process. The program is overseen by the cosmetics industry itself, which should demonstrate how ineffective it is. Only about 20% of the ingredients in cosmetics have been reviewed, while nine of the chemicals reviewed have been determined to be unsafe.

Cosmetics Lawsuits: Breach of Warranty

When you have been injured by the use of cosmetics, your attorney can pursue an action in breach of warranty or, more likely, product liability. Your lawyer could sue on the basis of breach of warranty if the manufacturer or seller made specific guarantees about the product or an implied warranty that the product was fit for normal use or a specific purpose.

Breach of warranty is often more difficult to prove than a product liability action where no specific or implied warranty is required. However, your attorney need not choose; they can file a lawsuit under color of both causes of action.

Cosmetics Lawsuits: Product Liability

Product liability is generally the preferred cause of action when there is an injury caused by cosmetics. Ohio has a strict liability doctrine for mass-produced products such as cosmetics, which means if a party was involved in any part of the process of bringing the product to market, they can be sued.

The plaintiff can sue the manufacturer or the seller or both. The plaintiff need not show the manufacturer was negligent, and the plaintiff need not sue all parties. This is a boon to plaintiffs suing for injuries caused by a product manufactured in a foreign country, perhaps a French face cream, because they need not negotiate suing a foreign manufacturer.

Ohio Rev. Code § 2307.71 lays out four theories for product liability claims:

• Defects in formulation, production, construction, creation, or assembly;
• Defects in design or formulation;
• Defect in warning or instruction;
• Failure to conform to representation concerning the character, quality, or safety of a product.

In order to win a product liability suit, the plaintiff must prove:

• The defendant sold or manufactured the product.
• The plaintiff is the intended type of user for the product. For example, if a product is for adults and is used on a baby, that might be a defense.
• The labeling failed to warn the plaintiff of proper use OR a defect in the product injured the plaintiff.
• The defect did not occur after the product was sold.
• The plaintiff did not use the product for other than its intended use. For example, if you used rouge as eye makeup and it caused an eye infection, you may lose your case.

Defenses Against Cosmetic Lawsuits

A defendant might argue one or more of these defenses:

The plaintiff is a “sophisticated user” who has special expertise and should have understood the dangers of the product. The defendant could argue that a professional makeup artist should know that using rouge as eye makeup could cause irritation.

The product is unavoidably unsafe. For example, if you stick yourself in the eye with a mascara wand while driving (or really at any time), that is not the fault of the manufacturer unless perhaps the wand had an abnormally sharp end. However, if the wand comes loose from the handle while you are using it, which results in an eye injury, then the manufacturer or seller could be held responsible.

The accident was the plaintiff’s fault rather than the fault of a product defect. Even if a product defect exists, it has to be the cause of your damage in order for you to win your case. For example, if you stick yourself in the eye with a mascara wand, it’s probably irrelevant if the mascara itself has a defective formula.

Class Action Lawsuits for Injuries by Cosmetics

When you sue for cosmetics product liability in Ohio, you may win compensatory damages such as medical expenses meant to restore you to your previous condition, and possibly damages for pain and suffering. In addition to compensatory damages, you may also be awarded punitive damages. However, if the court finds you were partially at fault for your injuries, your damages award will be reduced by the percentage you were at fault under Ohio’s comparative fault standard.

If a large number of people suffer the same type of injury after using a cosmetic, it may be possible to file a class action suit. The first step if you suffer such an injury is for your attorney to research whether or not such a suit already exists. If the case has already been settled, sometimes it is still possible to receive compensation from a settlement fund meant for those who were not part of the initial lawsuit.

Contact a Cosmetics Product Liability Lawyer

If you sit on your rights, you will lose them. If you have a personal injury caused by a defective product, in Ohio you must bring your case within two years of your discovery that your injury was caused by the product.

Cosmetics companies and sellers must use a reasonable standard of care in manufacturing and distributing products. If you feel you have been injured by using a cosmetic or other product in Ohio, don’t hesitate to contact the experienced attorneys of Dyer, Garofalo, Mann & Schultz to discuss your options.