- Thinx customers can now seek recoveries as part of a settlement by the period underwear brand.
- Consumer brands like P&G and Unilever have also paid out millions of dollars to settle lawsuits.
- Customers seeking vindication in court must deliver evidence and be strategic, lawyers said.
Thinx just agreed to pay up to $5 million to settle a class-action lawsuit claiming the Instagram-famous menstrual underwear contained harmful chemicals. The news may have some customers wondering: Can I, too, recoup money spent on a product that let me down?
The Thinx deal will repay customers for some purchases. But it doesn’t offer payouts for health issues or medical costs potentially linked to exposure to PFAS, the class of harmful “forever chemicals” that the lawsuit alleged was found in Thinx underwear.
Thinx has denied the lawsuit’s claims, and said it settled the suit without admitting any fault.
“We take customer health and product safety seriously. We can confirm that PFAS have never been part of our product design,” Felicia Macdonald, a representative for Thinx, said in a statement. “We will continue to take measures to help ensure that PFAS are not added to our products.”
The Thinx case highlights a common pattern in high-profile lawsuits over beauty and consumer products: customers may cite reports of bad experiences using a product, but not necessarily make those a pillar of their case. Instead, they emphasize that the company’s marketing and public statements misled them and allege that it violated state consumer protection laws.
Winning cases like this don’t often yield huge payouts on a per-customer basis. Instead, these cases — which can take years — may recoup only a portion of customers’ spending on the products in question. But plaintiffs lawyers said these types of lawsuits can also trigger other changes.
“We can make big changes to products and messaging the consumers receive, which allows consumers to make better, more informed decisions,” said Erin Ruben of Milberg Coleman Bryson Phillips Grossman, an attorney representing plaintiffs who sued Thinx. “That’s why we do what we do.”
The Thinx settlement includes a $4 million pot to pay customers and legal fees, and as much as another $1 million for any required “valid claims,” according to the settlement.
Customers could get reimbursed for up to three pairs of Thinx underwear, or get a discount of up to $52.50 on a new order, according to the settlement website. The brand also agreed to use quality control processes to make sure that PFAS chemicals aren’t “intentionally added” to its products.
In a separate case last July, Procter & Gamble Co. agreed to resolve class claims that the company’s brands like Secret and Old Spice didn’t warn that their spray deodorant contained the toxic chemical benzene.
P&G said in 2021 that it recalled the spray products at issue, citing an “abundance of caution.” It also said in its settlement notice that it “denies that any of the allegations are true and that it did anything wrong.”
The settlement included $8 million to eligible customers who wanted refunds, with a per-household cap of up to $10.50, according to filings in the case.
Personal injury claims can be hard to prove
In some cases, customers have won settlements covering alleged health problems, by making what are called personal injury claims. These claims can yield higher payouts, but are generally harder to prove — especially among a large class of plaintiffs.
In 2021, the curly hair shampoo brand Devacurl agreed to a $5.2 million settlement that included two categories of recoveries: $20 per customer to resolve claims related to how the brand advertised the safety of its hair care products, and as much as $19,000 for individuals who could show proof supporting claims that the products hurt them.
In that case, customers said Devacurl’s curly hair products contained ingredients that released formaldehyde and caused skin irritation, and said the company had quietly changed ingredients and formed a committee to handle negative publicity.
Devacurl has said on its settlement website that it “vigorously denies” claims of health problems like hair loss and scalp problems. The settlement site also states that the litigation never proved anything — only that “the costs and uncertainty” of a prolonged court case incentivized settling.
But the case shows how suits can sometimes leverage detailed allegations about what customers claimed were the offending ingredients, the volume of complaints, and how the company allegedly responded.
In 2014, Unilever agreed to provide $10.3 million to settle customers’ allegations that its Suave Professionals Keratin kit product contained an ingredient that could injure the scalp. Unilever agreed to the settlement while “denying wrongdoing of any nature and without admitting liability,” according to the settlement agreement.
That settlement provided options including a $10 refund for eligible customers, and payments for people who alleged the product caused them injuries, according to court filings in the case.
Plaintiffs lawyers may test products for harmful ingredients
In many cases concerning consumer products, plaintiffs lawyers may enlist a third party to test the items for any proof that they contain a harmful ingredient, attorneys said.
“It helps to have evidence that the chemical is in the product through independent testing, or news reporting,” said R. Jason Richards, an attorney at Aylstock Witkin Kreis & Overholtz. Richards said his firm has tested products like sunscreens before bringing lawsuits over them.
Beauty products generally aren’t as closely regulated as items like medical drugs and devices.
The Food and Drug Administration, which oversees cosmetics in addition to pharmaceuticals, requires items like makeup and shampoo to be safe, and to be labeled correctly for how they’re used.
But, unlike with medical drugs and devices, the agency doesn’t have to pre-approve cosmetics before they’re sold, and it doesn’t impose the same manufacturing practice regulations — leaving those safety and quality assessments up to companies.
“From a basic consumer protection standpoint, most companies will do some type of testing before releasing the product to make sure it’s safe,” said Allison Fulton, a partner at Sheppard Mullin who advises companies on complying with FDA rules. “It just doesn’t have to submit that data to the FDA,” she said.
For customers worried about whether they’re experiencing health problems from a product and seeing other similar complaints percolating in message boards, calling an attorney can be a good first step, said Diandra Debrosse Zimmermann, a partner at DiCello Levitt who represents plaintiffs in a range of suits, including issues arising from products.
“If you think it’s a significant issue, look online: are other people complaining? Reach out to the right lawyer,” she said.