Not All That Foams and Cleanses is Soap under California Organic Labeling Law

By Riëtte van Laack –

The California Organic Products Act (COPA) allows the use of the term “organic” on cosmetics only if they contain at least 70% organic ingredients.  In a consumer class action, plaintiffs alleged that Hain Celestial Group Inc. (Hain) misleadingly labeled two of its product lines as organic whereas the products did not contain at least 70% organic ingredients.

The plaintiffs moved for partial summary judgment with respect to 167 “Disputed Products.” The Court was presented with the question whether these products were indeed cosmetics and thus subject to COPA.  Hain argued that a large number of these products were soaps not cosmetics, because they foam and cleanse.  In addition, Hain argued that a number of products were not subject to COPA because they were a combination of drug and cosmetic and COPA does not reach drug products. 

The Court disagreed.  The Sherman Law defines cosmetic as not including soaps but does not define soap.  Specifically, the Sherman law defines a cosmetic as:

any article, or its components, intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to, the human body, or any part of the human body, for cleansing, beautifying, promoting attractiveness, or altering the appearance.  The term ‘cosmetic’ does not include soap.  [(Emphasis added)] 

Hain argued that soap should be given the common and usual lay person’s meaning, i.e., anything that foams and cleanses.  However, such a broad definition would exclude from the cosmetic definition any personal-care product that is meant for “cleansing.” Yet, the Sherman law definition of cosmetics expressly includes products intended for cleansing.  Moreover, Hain’s broad definition of soap would be inconsistent with FDA’s definition of soap (limiting the term soap to products for which the bulk of the nonvolatile matter in the product consists of an alkali salt of fatty acids and the detergent properties of the article are due to the alkali-fatty acid compounds and labeled, sold, and represented only as soap.  21 C.F.R. § 701.20).  Thus, Hain’s broad definition would create inconsistency between the federal and state law. 

The other issue the Court addressed was whether a product consisting of a combination of a drug and cosmetic is also subject to COPA’s requirements for cosmetics.  Under federal, as well as California law, a cosmetic may be combined with an over-the-counter drug without the cosmetic becoming a drug.  Hain argued that such products were drugs and COPA did not apply.  However, the Court came to a different conclusion.  Federal law and regulations “contemplate that some products will be subject to regulation as both cosmetics and drugs (e.g., 21 C.F.R. § 701.3(d) states that a cosmetic product that is also an over-the-counter drug product, must declare the drug (active) ingredients according to the requirements for over-the-counter drugs, and the cosmetic ingredients according to the requirements for cosmetics.).  Moreover, COPA nor any other state or federal law prohibits the use of the term “organic” on drug products.  Also, the use of the organic claim is voluntary and does not interfere with any federal or state labeling requirements. 

The Court concluded that such “drug-cosmetic combination” products are indeed subject to COPA. Thus, these drug-cosmetic combination products must contain more than 70% organic ingredients before they may be labeled as organic.