Marketplace As Enforcer? FDA Cedes Onus To Litigants – Attorney
This article was originally published in The Rose Sheet
Pointing to the uptick in consumer class actions targeting cosmetics claims and the lull in FDA enforcement action in the sector since the 2012 warning-letter blitz, Arent Fox partner Georgia Ravitz speculates that the agency is “letting the marketplace now scrutinize product label claims to determine whether they’re false or misleading.”
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Personal-care firms targeted with class actions over “natural” claims and other marketing can look to recent cases in the food sector for defense strategies that have proven effective, say two food and drug law attorneys. While suits targeting product claims are decidedly expensive and PR challenges, recent developments suggest that firms can strategize and invest to escape paying class damages.
Using marketing claims that overstep cosmetic boundaries can land firms in class-action suits that sap resources and drag on for years in today’s litigious climate, attorneys noted at the ACI Legal, Regulatory and Compliance Forum on Cosmetics in New York. Speakers provided examples and tips for staying out of court.
A proliferation of “extreme” anti-aging cosmetic claims that crossed the line into drug territory led to FDA’s cluster of warning letters in 2012, according to Jennifer Thomas, director of the division of enforcement in the Center for Food Safety and Applied Nutrition’s office of compliance,