The Dirt on Clean Beauty

Aarthi Kamatchinathan’s Term Paper

Introduction

In recent years, the beauty industry has undergone a significant transformation, with consumers increasingly prioritizing ingredient transparency over brand prestige or packaging appeal. This shift has been driven in part by the rise of the “clean girl aesthetic,” a TikTok trend that emphasizes a natural, minimalist and health-focused approach to beauty.¹ The global clean beauty market is now valued at $22 billion,² and in the US alone, nearly one-third of beauty products are labelled as “clean,” with the sector projected to grow by 12% between 2020 and 2027. Indie brands such as Merit and Saie have flourished by aligning themselves with the clean beauty movement, prompting established names like Dior to adapt and keep pace with evolving consumer expectations.³

Despite its ubiquity, the term “clean” remains ambiguous and inconsistently applied across the industry. In Europe, “clean” is often synonymous with sustainability, and the European Union enforces strict regulations, banning over 1300 ingredients from cosmetic products.⁴ In contrast, the US interprets “clean” as a preference for natural ingredients but lacks government regulations. However, change may be forthcoming with the proposed Safety Beauty Package, expected in May 2025, which intends to ban toxic chemicals⁵. In the absence of clear guidelines, particularly in the US, brands have taken it upon themselves to define what “clean” means. These regulatory gaps create space for greenwashing to flourish, as companies use the “clean” label as a marketing tool to attract consumers without facing meaningful oversight or accountability.

What is Greenwashing (and Cleanwashing)?

The absence of clear regulation has allowed greenwashing to become deeply embedded within the beauty industry. Greenwashing refers to the practice of overstating or falsifying a product’s environmental or ethical benefits.⁶ Major beauty brands have been at the center of such controversies. For example, L’Oreal marketed its bottles as being made from “100% recycled plastic,” while the fine print clarified this only applied to the bottle, not the cap. The brand has also claimed that certain products were “more sustainable” without providing any explanation of what that meant or how they met sustainability standards.⁷ Similarly, Bondi Sands, an Australian beauty company, faced a class action lawsuit in 2022 for allegedly misleading consumers with its “reef-friendly” sunscreen line. Despite the label, the products contained ingredients such as avobenzone, homosalate, octisalate and octocrylene – chemicals known to contribute to coral bleaching and the destruction of marine ecosystems.⁸

As clean beauty continues to rise in popularity, a related phenomenon has also emerged: “cleanwashing.” This refers to brands marketing products as “100% natural”, “safe”, or “clean” without adhering to any safety standards or regulatory oversight. In many cases, companies only make superficial changes, such as removing a single harmful ingredient, and then rebranding the product as “clean.”⁹ Because there is no legal requirement to substantiate these claims, any brand can label itself as “clean” without evidence. Recognizing the growing problem, the European Union took a major step in September 2023 when the EU Parliament reached an agreement to ban both greenwashing and cleanwashing in product marketing.¹⁰ However, the US and Canada have failed to create similar regulatory frameworks, leaving consumers vulnerable to misleading claims.

What does this mean for consumers?

The rise of greenwashing and cleanwashing has created a marketplace filled with confusion, misinformation, and misplaced trust. Many consumers choose products labelled “clean”, assuming they are safer or healthier, without realizing that the term lacks a standardized definition and regulatory oversight. This ambiguity is particularly concerning for individuals with health conditions who depend on accurate labelling to avoid potentially harmful ingredients. Similar misconceptions surround products labelled as “natural”, with the common, but often incorrect, assumption that natural ingredients are superior to synthetic ones. In reality, lab-created ingredients are frequently more stable, effective and rigorously tested.¹¹ Most consumers are not trained in cosmetic chemistry, and even those who carefully read ingredient lists often lack the expertise to interpret them or assess how they align with their health needs or values. Statistics indicate that 65% of American adults believe that it is difficult to know whether a brand is overstating how clean and eco-friendly it is, with just under half of “clean” beauty users having to stop using a product within a year due to an ingredient safety concern.¹² Exacerbating the issue, clean-labelled beauty products are frequently priced at a premium, resulting in consumers paying more for marketing buzzwords, rather than proven safety or effectiveness. In such an environment, the absence of transparency not only erodes consumer confidence but also places individual health, financial resources, and broader sustainability goals at risk.

Can Copyright or Trademark law fill this regulatory gap?

In Canada, intellectual property currently offers limited tools for verifying or safeguarding the use of vague marketing terms such as “clean”. More specifically, copyright law does not provide a mechanism for protecting product labels or marketing language that purports to guarantee natural ingredients. Under Section 5 of the Copyright Act, protection is reserved for original literary, dramatic, musical, and artistic works¹³. Generic or descriptive terms like “clean”, “natural”, or “non-toxic” fall outside this scope, as they lack the originality required for copyright protection. Courts have reinforced this principle in various decisions. For example, as discussed in class, in Exxon Corp v Exxon Insurance Consultants International Ltd (1981), the court held that the word “Exxon” was too minimal to constitute an original work¹⁴, and in Francis Day and Hunter v Twentieth Century Fox Corporation Ltd (1939), it was affirmed that the title of a work does not attract separate copyright protection.¹⁵ While these cases stem from UK common law, they have been influential in shaping Canadian copyright jurisprudence and demonstrate the limitations of copyright in regulating marketing language.

Canadian trademark law may offer a more viable, albeit imperfect, alternative. While it is possible to obtain trademark protection for words or phrases that distinguish the source of goods or services, Section 12(b) of the Trademarks Act bars registration of marks that are clearly descriptive or deceptively misdescriptive of a product’s character or quality.¹⁶ This means that generalized terms, like “clean”, are ineligible for registration unless the applicant can demonstrate that the term has acquired distinctiveness through prolonged and exclusive use, as outlined in Section 12(3) of the Trademarks Act.¹⁷ Importantly, this also prevents companies from securing trademark rights over the term “clean” when the claim is misleading or unsubstantiated. However, the reverse is also true: companies that do adhere to “clean” standards cannot easily verify or distinguish their products through trademark protection alone. In essence, the law restricts both misuse and meaningful use of the term.

To address this gap, certification marks offer a compelling solution. These marks, recognized under Section 23 of the Trademarks Act, are used to indicate that goods or services meet specific standards set by an independent body.¹⁸ Unlike conventional trademarks, certification marks may be registered and managed by organizations that do not sell the goods themselves but instead oversee compliance by licensees. In the context of clean beauty, a certification mark could signal that a product adheres to clearly defined criteria, whether related to ingredient safety, sustainability, or ethical sourcing. Well-established programs like Leaping Bunny, which certifies cruelty-free products¹⁹, and EWG Verified, which assures consumers of ingredient safety and transparency, demonstrate how such marks serve as trusted indicators of integrity.²⁰ However, despite their value, certification marks do not seem to be adopted widely enough within the beauty industry. This can be attributed to the fact that terms like “clean” can be freely used without any obligation to meet verified standards. The lack of incentive discourages companies from pursuing formal certification, as the marketing value of the term “clean” can be exploited without any legal consequence. Introducing legislation that restricts the use of terms like “clean”, “natural”, or “non-toxic” to products bearing recognized certification marks could create a more transparent and trustworthy marketplace. Such a framework would not only protect consumers but also encourage industry-wide accountability.

Conclusion

In conclusion, the unchecked use of vague marketing terms like “clean,” especially in the rise of clean beauty trends, undermines consumer trust and meaningful progress. Intellectual property law, through a certification-based legal framework, could bridge the gap between ethical branding and regulatory accountability, ensuring that “clean” beauty is more than just a label.

Introduction

What is Greenwashing (and Cleanwashing)?

What does this mean for consumers?

Can Copyright or Trademark law fill this regulatory gap?

Conclusion

Sources

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