Cosmetics & The Law

Earlier this week, I saw a Twitter feed for a story published by The Associated Press called “The meaning of ‘organic’ hazy for nonfood items.” I decided it may be helpful to provide a response–at least as to cosmetics –about a few things mentioned in the article.

First, agricultural products, which comply with the NOP, may use the USDA Organic Seal.  To do so, requires certification by an accredited third party certifier.

Second, the article fails to mention the California Organic Products Act of 2003. Per COPA, cosmetics, “sold as organic” in the state of California, must exceed a minimum threshold of 70% organic ingredients, excluding water and salt.  If the product does not meet that threshold, then it may only identify those ingredients that are organically produced (i.e., the ingredients must be certified organic under the USDA NOP guidelines) in the ingredient statement AND the percent of organic ingredients, excluding water and salt, must be listed on the information panel with the ingredient statement.

Under COPA, “sold as organic” is defined quite broadly.  I could debate all day regarding whether simply the word “organic” appearing on a label somewhere means the product is or is not “sold as organic.” But, as at least one court has noted, the plain language appears to preclude the word from appearing anywhere other than the ingredient statement and percentage statement unless the product’s “organic” content exceeds 70%.

If the statistics for cosmetic sales in California are approximately equivalent to the California’s GDP compared to the U.S. GDP, which was about 12% for 2013, then cosmetic companies need to be aware of and mindful of COPA. (I don’t know if cosmetics sales in California amount to 12% of U.S. cosmetic sales, but even if it is only 10%, that can still be a big number for many companies.)

Third, unfortunately most if not all private organic standards, such as the NSF/ANSI 305 as well as Ecocert France, conflict with COPA.  For example, under the NSF/ANSI 305 standard, the percent of organic ingredients is calculated excluding water, salt, AND minerals.  As a result, a product containing minerals that is 99% organic under NSF/ANSI 305 might only be 69% organic under COPA calculations. If that product was sold in California with the 99% organic statement it may arguably be misleading to California consumers and may technically violate COPA.

Finally, while agency enforcement at the national level may be absent, California’s Department of Public Health has proceeded with enforcement actions and responds to consumer complaints.  In addition, while it may be confusing to consumers as the article implied, the lack of clear national directives for “organic” cosmetics can be equally confusing and frustrating to companies trying to do the right thing.