William & Mary Business Law Review


Maria Monastra


In recent years, the cosmetic industry has experienced an increase in litigation brought on by consumers in their efforts to protect themselves from cosmetics that are either unsafe or falsely advertised. The Supreme Court of the United States’ discussion in POM Wonderful v. Coca-Cola Co. of the Lanham Act, the United States’ principal false advertising statute, clarified the breadth and depth of allowable lawsuits brought under the statute in matters which also concern the Food, Drug, & Cosmetic Act (FDCA). The case centered on a detailed discussion of the issue of federal preemption. Although the decision directly involved only the food and drug manufacturing industry, the Court’s holding appears to promote an expanded use of the Lanham Act generally, and conjunctively, in industries otherwise regulated by the Food and Drug Administration. This Note will examine the ways in which the cosmetic industry will be affected if its manufacturers appropriately apply the Court’s holding in POM Wonderful v. Coca-Cola Co. to their own issues of false advertising and consumer dissatisfaction. Furthermore, the shortcomings of traditional consumer protection lawsuits are discussed before I argue that both consumers and manufacturers of cosmetics would fare better if the cosmetic industry’s legal issues were resolved by and between those with capital interests in the cosmetics themselves.