Kiss My Face (KMF) and its related companies tout themselves as “pioneers” in “natural cosmetics” and say they are “respected leaders in natural body care.” But, the complaint alleges, the word “natural” is not accurate for at least two of its products—KMF® 2-in-1 Deep Moisturizing Body Lotion and KMF® Bath and Body Wash. According to the complaint, both of these products contain synthetic ingredients.
The class for this class action includes all persons who bought Kiss My Face Body Lotion and Kiss My Face Body Wash products in the state of New York during the class period. The class period has not been exactly defined, but is proposed to run from the beginning of any limitations period through the date of class certification.
What makes something a “natural” product? The Federal Trade Commission (FTC) has said, “If reasonable consumers could interpret a natural claim as representing that a product contains no artificial ingredients, then the marketer must be able to substantiate that fact.”
The US Department of Agriculture has set forth a draft of guidelines as to what “natural” means. According to these guidelines, the complaint says, a product is “natural” if it meets the following conditions: “(a) it is manufactured, produced, or extracted from a natural source (i.e. naturally occurring mineral or biological matter); (b) it has not undergone a chemical change (i.e. a process whereby a substance is transformed into one or more other distinct substances) so that it is chemically or structurally different than how it naturally occurs in the source material; or (c) the chemical change was created by a naturally occurring biological process such as composting, fermentation, or enzymatic digestion or by heating or burning biological matter.”
Also, according to the complaint, surveys and other market research show that reasonable consumers believe that when the term “natural” is applied to items like the KMF products, it means that the products do not contain synthetic ingredients. Average consumers, the complaint says, do not have a means, beyond the company’s or the label’s claims, to determine for themselves whether a product’s ingredients are natural or synthetic.
The complaint alleges that KMF’s labels say that its body lotion and body wash “nourish naturally” and that they are “naturally effective” or “natural plant based.” However, the complaint says, both products contain phenoxyethanol and/or ethylhexylglycerin, two synthetic ingredients. All six varieties of body lotion and all eight varieties of body wash contain these two chemicals.
In fact, the complaint says, in April 2016, the FTC filed complaints against three makers of cosmetics for calling their products “natural” when they contain one or both of these substances. These companies did agree to stop marketing these products as “natural.”
Thus, the complaint says, for KMF to continue to call its body lotion and body wash “natural” is a violation of New York General Business Law.