Generally, when a person goes to the store, they like to be able to rely on the information provided to them on the labels of the products they are buying. Often people give credit to claims of “approved by 9 out of 10 dentists” or “90% effectiveness at treating your problem”, or even “our product has a 90% absorption rate.” Sadly, claims like these are sometimes made without actual factual backing and as such can constitute an offense under consumer protection laws.

A recent study published in the journal of BMJ Sexual & Reproductive Health on August 7^th, 2023, details the fact that up until now no currently marketed feminine menstruation products namely tampons, pads, cups, and menstrual discs have been tested with actual blood for absorption levels.[1] The testing in the study measured the capacity for absorption of 21 separate period products from across the industry all of which claimed different levels of absorption.[2] The team conducting the research found there were serious mismatches between the reported absorbency levels and the actual absorbency of the products tested, with a majority greatly inflating the stated absorption amount above the actual levels found.[3] Further, manufacturers of the products have previously used saline or water to measure the absorbency of the products.[4] The study further details––what may be a common assumption for most––that menstrual blood is quite different in its components and consistency and, therefore, has a much different absorbency rate than saline or water.[5]

To examine how we got to this point, it is important to note that tampons specifically are regulated by the Food and Drug Administration (FDA) as medical devices.[6] This arose after a rash of cases of toxic shock syndrome arose in the 1980s. In response to this phenomenon, a Tampon Task Force was created by the FDA which helped standardize testing standards and labeling across the industry.[7] Part of this task force’s mandate was using saline solution as the liquid for absorption testing.[8] This decision was seemingly made due to the difficulties of securing actual menstrual blood for testing purposes and a fundamental misunderstanding of the menstrual process.[9] Detractors have claimed that this decision was clouded by the fact that menstrual health and concepts related to sexual health have been historically understudied and under prioritized.[10] They further claim that “[s]aline test fluid… [was] not only inadequate for their stated test purposes of representing women’s bodies and fluids but benefited industrial and corporate needs.”[11] It is plain to see that these companies have committed a widespread injustice to the women of the world in failing to adequately test and market their products.

Putting aside the vast moral turpitudes of this obscene misrepresentation by female hygiene companies, this false advertising may be actionable for claims of false advertising. The first line of defense that should be executed against these companies is through a lawsuit brought by the Federal Trade Commission (FTC). The FTC serves as the nation’s consumer protection agency, and they have a broad mandate to protect consumers from fraudulent advertising.[12] Additionally, many states maintain private causes of action for individuals to bring false advertising claims against these companies. In general, false advertising claims may be brought against companies based on their advertisements being false, misleading, or deceptive [AO1] [AO2] to reasonable consumers.[13] Actionable product claims must be specific or measurable factual representations that can be literally false or literally true but tend to mislead, confuse, or deceive the public.[14] It has been shown in the past that the misrepresentation of direct figures pertaining to the performance of the product is easily actionable as false advertising.[15] One major case involved Hyundai and its misrepresentation of the horsepower of some of its vehicles.[16] In this case, Hyundai overstated the horsepower of its models by 10%, for which Hyundai paid a settlement of $85 million to over 840,000 affected customers.[17] When you consider the fact that this misrepresentation of 10% was actionable, it is easy to see that a potential claim exists against these companies. Combine those facts with the reality that there are more than 34 million Americans who use menstrual products regularly, and there is a possibility for a wave of litigation against these companies.[18] 

In summary, an injustice has been perpetrated against the women of this world by lying to them about some of the most necessary and commonplace products in their lives. This injustice should be remedied through civil liability cases against these companies and litigation pursued by the FTC. One can only hope that these companies will do better in the future and that the stigma and mystery surrounding women’s health products can be lifted by making these companies accountable for their actions.