The modern beauty industry occupies a curious position at the intersection of constitutional law, consumer protection, and gendered health risks. Advertising for cosmetics, whether glossy television spots or viral TikTok endorsements, enjoys robust protection under the First Amendment as commercial speech. Yet this protection often shields marketing for products later revealed to contain toxic ingredients or contaminants that disproportionately harm women. Talcum powder linked to ovarian cancer, benzene-contaminated dry shampoo, and asbestos-tainted makeup illustrate the stakes. This analysis argues that the current commercial speech doctrine, grounded in the holding of Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, inadequately accounts for the real-world harms of cosmetic advertising.[i] A recalibrated framework, paired with strengthened regulatory enforcement, is necessary to reconcile constitutional principles with consumer safety.

The Supreme Court has long recognized that commercial speech, expression that proposes a commercial transaction, receives First Amendment protection, though less than that afforded to political or artistic speech.[ii] The canonical framework is the four-part test announced in Central Hudson.[iii]

Under Central Hudson, courts first ask whether the speech is misleading or concerns unlawful activity.[iv] If so, it receives no protection. If not, the government may still regulate where (1) it asserts a substantial interest, (2) the regulation directly advances that interest, and (3) the restriction is not more extensive than necessary. This intermediate scrutiny balances the informational value of commercial speech against the state’s consumer protection role.

Two later decisions refine this framework. In Zauderer v. Office of Disciplinary Counsel, the Court held that the government may compel “purely factual and uncontroversial” disclosures reasonably related to preventing deception.[v] Disclosure regimes—nutritional labels, “#ad” or “creator earns commission” tags for influencers—are thus permissible under a more deferential standard. By contrast, in Sorrell v. IMS Health Inc., the Court struck down a law restricting pharmaceutical data mining because it discriminated against specific speakers and content.[vi] Sorrell holds that regulations targeting marketing practices must focus on deception and risk, not merely disfavored viewpoints.[vii] This doctrine is facially adequate. But in practice, it often leaves harmful cosmetic advertising untouched until litigation or recall—long after women have suffered preventable long-term injuries. [viii]

The empirical record of harm from cosmetic products is unsettling. A 2023 cross-sectional study found that 44 percent of cosmetic users reported adverse effects, yet few consumers regularly read labels or understood how to report incidents.[ix] Harvard Health estimates that the average woman uses twelve products daily, many of which contain chemicals lacking long-term safety data.[x] Research highlights elevated risks associated with permanent hair dye, particularly for Black women.[xi]

The litigation history is even more sobering. Talcum powder, once marketed as a hygienic staple, has been linked to ovarian cancer through asbestos contamination.[xii] Not all talc products are required to undergo premarket asbestos testing, leaving consumers vulnerable.[xiii] Johnson & Johnson alone has faced over 66,500 lawsuits in 2025, and its liability is projected in the tens of billions of dollars.[xiv] The company has already paid billions, including a $2.1 billion appellate judgment in 2020, where 22 women were awarded relief by a Missouri Court of Appeal.[xv] Of these 22 women, 9 have already died from ovarian cancer allegedly caused by baby powder and other talc products manufactured by Johnson and Johnson.  In March 2025, a federal court rejected Johnson & Johnson’s attempt to resolve claims through bankruptcy, underscoring the magnitude of its exposure.[xvi]

Similarly, dry shampoos exemplify contemporary aerosol risks. In 2022, Valisure, an independent laboratory, petitioned the Food and Drug Administration (“FDA”) after detecting benzene, a known carcinogen, in roughly 70 percent of 148 batches tested across 34 brands—including Batiste.[xvii] A class action against Batiste settled for $3.1 million, including $2.5 million in cash payments.[xviii] While modest compared to talc verdicts, this figure exemplifies the substantial liability that new-product categories face when contamination is revealed.

Asbestos contamination in cosmetics has also produced staggering verdicts. In 2022, a California jury awarded $50 million against Avon for mesothelioma caused by asbestos in its talc-based powders.[xix] These judgments demonstrate that unsafe beauty products do not just threaten health—they also impose extraordinary financial burdens on courts, companies, and consumers.

Emerging science further illustrates systemic risk. Per- and polyfluoroalkyl substances (“PFAS”), parabens, and phthalates are widely detectable in blood, breast milk, and urine samples.[xx]  PFAS are known to cause various types of cancers in both men and women. These include cancer of the ovaries, kidneys, testicles, breasts, and thyroid.[xxi] Because these chemicals are ubiquitous in the bodies of women and may also affect their children, they have spurred the rise of “clean beauty” campaigns, deepened consumer skepticism, and underscore the disproportionate risks faced by women.

Such harms are gendered. Women, as the primary users of cosmetics, bear disproportionate exposure.[xxii] The intersection of systemic under-testing, targeted marketing, and massive social-media amplification creates a structural inequity: women absorb most of the risk while corporate speech remains constitutionally sheltered.

The FDA historically had limited authority over cosmetics. Unlike drugs, cosmetics are not subject to premarket approval, except for use of color additives.[xxiii] Until recently, the FDA lacked authority to mandate recalls, relying instead on voluntary industry action.[xxiv]

Congress partially addressed this discrepancy through the Modernization of Cosmetics Regulation Act of 2022 (“MoCRA”), the first major statutory overhaul since 1938.[xxv] MoCRA introduced facility registration, product listing, serious adverse-event reporting, fragrance-allergen disclosures, and recall authority.[xxvi] The statute also directed FDA to establish a standardized method for detecting asbestos in talc.[xxvii] Yet MoCRA stops short of requiring premarket safety approval for ingredients. Consequently, states continue to ban specific chemicals piecemeal, creating a patchwork regime.

Meanwhile, the marketplace evolves faster than regulators. TikTok alone drove $31.7 billion in beauty sales in 2024, shaping consumer preferences at unprecedented speed.[xxviii] The Federal Trade Commission (“FTC”) has updated its Endorsement Guides to require influencer disclosure of paid relationships and adequate substantiation for product claims.[xxix] Nonetheless, enforcement remains sporadic, and the virality of short-form content often outpaces regulatory oversight.

International divergence highlights U.S. shortcomings. The European Union has classified talc as a category 1B carcinogen and is moving toward a 2027 ban in cosmetics.[xxx] This proactive stance contrasts sharply with the U.S. post-market model. Why not simply ban harmful products or aggressive marketing? The First Amendment creates structural hesitation. Truthful, non-misleading commercial speech is protected, even if it persuades consumers to buy risky products.[xxxi] Regulations must be carefully tailored as over broad bans risk invalidation for speech suppression.[xxxii] This doctrinal rigidity makes consumer protection reactive. By the time regulators establish deception or contamination, the products are already widely sold. The benzene dry shampoo case illustrates the lag: marketing remained lawful until independent testing revealed carcinogenic contamination.

Moreover, the influencer economy blurs the line between personal expression and commercial promotion. A TikTok creator may blend sponsored and unsponsored content, complicating the Central Hudson application and FTC disclosure rules. Platforms become conduits for hybrid speech categories that courts have not squarely addressed.

A more nuanced approach would protect truthful advertising while proactively ensuring consumer safety. Three reforms stand out to create an approach tailored to this new age of advertisement. First is the Refined Disclosure Doctrine, which mandates more comprehensive disclosure from beauty product manufacturers than was previously required. Courts should consider this doctrine when interpreting Zauderer to permit robust factual disclosures where cosmetics present plausible health risks. Mandatory labels noting fragrance allergens, benzene testing results, or talc asbestos-screening would be consistent with Zauderer’s “factual and uncontroversial” standard.[xxxiii]

Second, Central Hudson needs recalibration. Courts could recognize public health as a “substantial interest” that justifies stronger prophylactic measures for high-risk product categories. Narrowly tailored restrictions—such as barring “asbestos-free” claims absent validated testing—would directly advance safety without eliminating truthful speech. Third, regulatory agility needs expansion. Congress should extend MoCRA to require premarket safety substantiation for classes of ingredients flagged by biomonitoring studies, such as PFAS. Federal preemption would also harmonize standards and reduce reliance on piecemeal state legislation.

These reforms would not silence cosmetic advertising. Instead, they would align the commercial speech doctrine with modern consumer expectations, ensuring that persuasive marketing is coupled with demonstrable product safety. The commercial speech doctrine, forged in an era of print ads and broadcast jingles, now governs an industry driven by algorithmic virality and mass consumption of untested products. While truthful advertising deserves First Amendment protection, the doctrine’s current application too often allows harmful beauty products to reach consumers unchecked. Women, who disproportionately use these products, absorb the consequences.

The solution is not censorship but recalibration. Courts should apply Zauderer disclosures more liberally, recognize robust public health interests under Central Hudson, and permit Congress to craft proactive safeguards. International experience shows that strong consumer protection can coexist with vibrant markets. The First Amendment must not be read to constitutionalize preventable harms in the name of “beauty.”

[i] Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 557 (1980).

[ii] Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976).

Our question is whether speech which does “no more than propose a commercial transaction,” is so removed from any “exposition of ideas,” and from “truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government,” that it lacks all protection. Our answer is that it is not.

Id. (internal citations omitted).

[iii] Cent. Hudson Gas & Elec. Corp., 447 U.S. at 566 (1980) (“In commercial speech cases, then, a four-part analysis has developed.”).

[iv] Id. (“For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.”).

[v] Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626, 651 (1985) (“The State has attempted only to prescribe what shall be orthodox in commercial advertising, and its prescription has taken the form of a requirement that appellant include in his advertising purely factual and uncontroversial information about the terms under which his services will be available.”).

[vi] See Sorrell v. IMS Health Inc., 564 U.S. 552, 571 (2011) (striking a law in which the state sought to impose content and speaker-based restriction on the availability and use of prescriber identifying information).

[vii] See id.

[viii] See id.

[ix] See 44% of Cosmetic Users Experience Negative Side Effects, Dermatology Times (Apr. 12, 2023), https://www.dermatologytimes.com/view/44-of-cosmetic-users-experience-negative-side-effects [https://perma.cc/FY9B-6FRL] (“As much as 44% of individuals who use cosmetics in their daily routines experience negative side effects.”).

[x] Toxic Beauty, Harv. Health Publ’g (Apr. 1, 2020), https://www.health.harvard.edu/womens-health/toxic-beauty [https://perma.cc/E2KU-V2PD] (“The average woman uses 12 different beauty products every day — cleansers, conditioners, hair dyes, fragrances, skin care products, scented lotions, nail polish, and makeup, to name a few. Take a quick glance at the labels, and you’ll see a cocktail of chemical components.”).

[xi] See id. (“Women in the study who used permanent hair dye at least once in the 12-month period leading up to the study had a 9% higher risk of developing breast cancer than women who didn’t use hair dye . . . [and the study] found an even higher risk for African American women.”).

[xii] See Daniel Cramer, et al., The Association Between Talc Use and Ovarian Cancer: A Retrospective Case–Control Study in Two US States, 27 Epidemiology 334, 334 (May 2016).

[xiii] See Jennifer Lucarelli, Asbestos in Makeup: Brands & Exposure Risks, Mesothelioma.com, https://www.mesothelioma.com/asbestos-exposure/products/makeup/ [https://perma.cc/8K7D-YBAL] (last updated July 7, 2025) (“Consumers should keep in mind that cosmetic companies are not required to test the safety of their products or present a list of ingredients to the FDA.”).

[xiv] Johnson & Johnson Talcum Powder Lawsuit, Sokolove L., https://www.sokolovelaw.com/product-liability/talcum-powder/johnson-and-johnson/ [https://perma.cc/Y2NF-XVEF] (last updated Sep. 11, 2025) (“Over 66,500 Johnson & Johnson lawsuits have been filed as of Sep., 2025.”).

[xv] Id. (“$4.69 [b]illion, later reduced to $2.1 Billion: In Missouri, 22 women were awarded significant compensation after filing a talc ovarian cancer class action lawsuit against Johnson & Johnson.”).

[xvi] Id. (“In March 2025, J&J’s proposed $8 Billion ovarian cancer settlement was rejected by a bankruptcy judge. This was the company’s third failed attempt at using bankruptcy to avoid talcum powder lawsuits.”).

[xvii] Batiste Dry Shampoo Cancer Lawsuit (2024 Update), Lawsuit Info. Ctr. (June 25, 2024), https://www.lawsuit-information-center.com/batiste-dry-shampoo-cancer-lawsuit.html [https://perma.cc/NYH8-S334] (“Of the 148 batches from 34 brands tested, Valisure found that 70 percent, including Sun Bum, Paul Mitchell, and Batiste dry shampoos, contained benzene.”).

[xviii] Id. (“The manufacturers of Batiste Dry Shampoo have agreed to a $2.5 million settlement in a class action lawsuit due to benzene found in the aerosol spray cans.”).

[xix] See Cramer, et al., supra note xii (“In 2022, a California jury ordered Avon to pay $50 million. The plaintiff was a 76-year-old woman who developed mesothelioma. She had some Avon products that tested high in asbestos content.”).

[xx] Consumers Question Safety of Parabens and PFAS in Personal Care Products Amid Health Concerns, Chemistry World (Aug. 26, 2025), https://www.chemistryworld.com/features/consumers-question-safety-of-parabens-and-pfas-in-personal-care-products-amid-health-concerns/4021988.article [https://perma.cc/RHF7-VXC4] (“Multiple studies have detected traces of these substances in people’s blood, hair, urine and even breast milk.”).

[xxi] See PFAS Exposure and Risk of Cancer, Nat’l Cancer Inst.,  https://dceg.cancer.gov/research/what-we-study/pfas [https://perma.cc/SMX4-DNT5] (last visited Sep. 26, 2025).

[xxii] See Dermatology Times, supra note ix (explaining that women are the primary users of beauty products and providing and overview of different types of products and their adverse effects).

[xxiii] See FDA Authority Over Cosmetics: How Cosmetics Are Not FDA-Approved, But Are FDA-Regulated, U.S. Food & Drug Admin., https://www.fda.gov/cosmetics/cosmetics-laws-regulations/fda-authority-over-cosmetics-how-cosmetics-are-not-fda-approved-are-fda-regulated [https://perma.cc/29YL-9TD3] (last visited Sep. 26, 2025).

[xxiv] Id.

[xxv]See Modernization of Cosmetics Regulation Act of 2022 (MoCRA), U.S. Food & Drug Admin.,  https://www.fda.gov/cosmetics/cosmetics-laws-regulations/modernization-cosmetics-regulation-act-2022-mocra [https://perma.cc/Q5MR-SVV9] (last visited Sep. 26, 2025).

[xxvi] Reforming Federal Cosmetics Law: What is the Modernization of Cosmetics Regulation Act?, Env’t Working Grp., https://www.ewg.org/news-insights/news/2023/12/reforming-federal-cosmetics-law-what-modernization-cosmetics-regulation [https://perma.cc/AQJ5-GJB4] (last visited Sep. 26, 2025).

[xxvii] Id.

[xxviii] TikTok Drives $31.7B in Beauty Sales: How Viral Trends Are Shaping the Future of Cosmetics, CosmeticsDesign.com (Aug. 20, 2024), https://www.cosmeticsdesign.com/Article/2024/08/20/tiktok-drives-31.7b-in-beauty-sales-how-viral-trends-are-shaping-the-future-of-cosmetics/ [https://perma.cc/2A4A-QXTG] (highlighting how hashtags such as #TikTokMadeMeBuyIt serve as proof of the sharp growth regarding beauty product advertising reaching $31.7 billion in 2023).

[xxix] See The FTC’s Endorsement Guides: Being Up-Front With Consumers, Fed. Trade Comm’n, https://www.ftc.gov/legal-library/browse/rules/guides-concerning-use-endorsements-and-testimonials-advertising [https://perma.cc/D4XG-L8D4 ] (last visited Sep. 26, 2025) (“The Endorsement Guides also state that, if there is a connection between the endorser and the marketer of a product which would affect how people evaluate the endorsement, the connection should be disclosed.”).

[xxx] See Talc to Be Banned in the EU, CosLaw.eu, https://coslaw.eu/talc-to-be-banned-in-the-eu/ [https://perma.cc/KQ6M-96JC] (last visited Sep. 26, 2025).

[xxxi] See Cent. Hudson Gas & Elec. Corp., 447 U.S. at 566.

[xxxii] See Sorrell, 564 U.S. at 571.

[xxxiii] See Zauderer, 471 U.S. at 651.