A new lawsuit over alleged mislabeling accuses Sephora, a leading cosmetics manufacturer, of not telling customers that its powdered face makeup contains titanium dioxide and lacks a warning label allegedly required by California's Proposition 65.
The suit is alleging that Sephora failed to sufficiently warn consumers in California about the potential risks associated with exposure to titanium dioxide in relationship to the manufacture of some of its products. The suit also contends that the defendants were issued a "Notice of Violation" more than 60 days prior to a formal complaint being filed in compliance with Prop 65, instructing them to provide warning labels on any products containing TiO2.
The suit alleges that Incedible You Glow Girl Pigment Highlighter contains free-floating airborne particles of TiO2 that are easily inhaled, upping the exposure score substantially. EHA asserts that Sephora knew the additive was on the Prop 65 list and that it intended to have consumers use the product.
Titanium dioxide is the naturally occurring oxide of titanium. It’s a white powder that’s widely used as a whitening agent, UV filter, and thickener in many products such as sunscreen, coffee creamer and chewing gum.
Although the powdered form of TiO2 is a known carcinogen, it dissolves in water making it inert. The FDA considers this form harmless to humans as a food and cosmetic additive as exposure rates are within tolerances. However, when added to dry preparations, free-floating airborne TiO2 nanoparticles are no longer considered inert or safe, which requires a warning label under Prop 65, according to the complaint.
Violations of Proposition 65 are costly. And as the burden of proof on defendant business owners can be difficult, most cases often settle out of court. In 2019, for instance, more than 900 businesses settled close to $30M in claims, making Prop 65 cases increasingly popular in the legal community. And 80% of those payments went to pay the lawyers who brought the lawsuits, according to settlement data from the California Attorney General's office.
The lawsuit seeks a trial by jury and is seeking civil penalties in the amount of $2,500 per day for each violation, court costs and legal fees.
EHA is represented by attorneys Noam Glick, Jake W. Schulte, Craig M. Nicholas, and Janani Natarajan of Entorno Law, of San Diego.