Earlier this month, a consumer watchdog group published a document arguing that certain bath products continue to contain a preservative that includes formaldehyde and possibly 1,4-Dioxane.  This same organization filed a report in 2009, which resulted in lawsuits under California’s unfair competition law (“UCL”; § 17200 of the California Business and Professions Code) and Proposition 65 (the Safe Drinking Water and Toxic Enforcement Act of 1986).  In 2009, the same group alleged that preservatives in bath products were not as safe as companies claimed, since they contained chemicals that the group alleged increase the risk of cancer.

Many of the prior lawsuits were successfully defended, but defense comes at a cost.  If new companies become targets of this consumer watchdog group or others like it, they may want to engage counsel to explain to the group (and plaintiffs’ attorneys) that existing preservatives advance public health concerns by reducing the risk of bacterial infection or other problems.  Additionally, some consumer-driven testing methodologies do not represent actual risks to users; this can also be an effective point to raise in litigation.  As suggested by the watchdog group’s recent report, the phase out of formaldehyde-containing preservatives in cosmetics has less to do with the alleged cancer risk and more to do with other business and regulatory issues.       

Class action attorneys and plaintiffs may attempt to take advantage of the November 1, 2011 report and instigate litigation in environmental and consumer protection actions.  In light of this concern, companies that sell personal care products, such as bath products, may wish to review their labels and raw material supply to reduce the risk of litigation.  Companies that get dragged into litigation  should retain experienced counsel immediately for a thorough evaluation of cases and the methods relied upon by plaintiffs in support of their lawsuits.  Indeed, early dialogue between a well-prepared defense counsel and a plaintiff can make a significant difference in both the cost and time devoted to litigation.