ANALYSIS

The Plaintiffs’ Bar's Use of COVID-19 To Spur Personal Care Products Lawsuits

The COVID-19 pandemic has brought a sharpened focus on labeling of consumer goods, including personal care products, and it may cause the plaintiffs’ bar to examine product claims in light of medical issues related to the coronavirus. If a product's claims involve health, wellness, sanitation, cleanliness, anti-bacterial, medicinal, antiseptic or other related claims, the plaintiffs’ bar may try to characterize such claims as false advertising, misrepresentation or unfair and deceptive trade practices when measured against the medical facts of the coronavirus. In this context, there may also be a focus on an alleged failure to substantiate claims. Product claims made on social media may also be subject to the same scrutiny by plaintiffs’ counsel.

The plaintiffs’ bar has already filed the first putative consumer class actions regarding alleged false advertising by consumer product companies. (See, e.g., David, et al. v. Vi-Jon, Inc. d/b/a Germ-X, 3:20-cv-9999 (S.D. Cal.); Miller et al. v. GOJO INDUSTRIES, INC., d/b/a Purell, 2020 WL 1599806 (N.D.Ohio)) Hand sanitizers have been an obvious target. The plaintiffs’ bar may also allege in class actions that the product used by a consumer contributed to complications of the consumer’s coronavirus. Plaintiffs’ attorneys may also seek to amend existing complaints in lawsuits to allege such claims, as has already been done in California.

A company marketing personal care products may want to consider some of the following measures to present products to the consuming public accurately and avoid class action scrutiny by the plaintiffs’ bar:

1. Remain cognizant of the fact that FDA warning letters relating to a product may, and likely will, soon generate class actions by the plaintiffs’ bar. History suggests that personal care products companies should avoid making claims that the products, or product ingredients, affect the structure or function of the human body. Keep in mind that COVID-19 need not be specifically mentioned on the product labeling, website or other materials to be viewed as deceptive.
2. Review advertising, labeling and promotional materials to verify that health claims or pharmaceutical claims are not being made or overstated as to the personal care products. The latitude accorded cosmetics by FDA does not extend in the same measure to products that may be viewed as pharmaceuticals. Review should include ongoing monitoring of all relevant social media posts. Ensure that any medical claims are supported by competent and reliable scientific evidence.
3. Review websites, promotional materials, product labels and other materials to ensure there are no statements that could be interpreted as misleading consumers that the products are safe and effective for a COVID-19-related use and for which they have not been approved by FDA.
4. Consider ongoing monitoring of food litigation class actions as a barometer of directions the plaintiffs’ bar may take with respect to future class actions against personal care products companies.
5. Research consumer fraud statutes to determine if private plaintiff lack-of-substantiation claims are authorized under the relevant state statutes or whether state consumer protection laws allow plaintiffs to assert the alleged claims based on FDA violations.
6. Consider relevant state laws that prohibit advertisements that are not only misleading or untrue, but also prohibit advertising that is known or should be known to be untrue or misleading. Similarly, some states prohibit advertising that, while true, may have a tendency to deceive or confuse the public.
7. Be aware that the Lanham Act allows false advertising claims by competitors who claim to be injured by the defendant’s false or misleading representation(s) in advertising. See 15 U.S.C. § 1125(a)(1)(B).

Commentators caution that class actions will continue as businesses and individuals deal simultaneously with the pandemic and the economic slowdown. Already-filed class actions include claims regarding education refunds; institutional exposure litigation (prisons, etc.); product labeling; product misrepresentation; securities; invasion of privacy (Zoom, etc.); refund classes as to hospitality, recreational and fitness businesses; refund litigation or exposure litigation involving travel, airline and cruise ship class actions; concert and event refunds; professional sports refunds (MLB, etc.); insurance-related claims; as well as other exposure types of claims (employees, etc.). Bankruptcy filings are up and will continue. In this rapidly accelerating climate of class action litigation, a personal care products company may reasonably anticipate more litigation for some time to come.