The court previously granted plaintiffs' motion for class
certification but required plaintiffs to designate new lead plaintiffs, which
they did, naming a putative New York class representative and a putative
California class representative. Their claims were brought on behalf of
residents of those states who bought Garnier Fructis Sleek & Shine
Anti-Frizz Serum, alleging breach of the implied warranty of merchantability
and of the implied warranty of fitness; violations of California’s UCL, CLRA,
and FAL; and violations of NY GBL § 349 & 350.
L’Oreal markets the Serum as a leave-in hairstyling product,
advising consumers to use “as much as needed for your hair type,” “do not
rinse,” and “[f]or the sleekest look, style using brush and blowdryer.” Plaintiffs alleged that “[w]hen the product is
applied to hair and exposed to high heat or ignition sources, the product may
instantly ignite and a hair fire will spread rapidly.” Also, “[e]xposure to
common household items, such as a spark from a blowdryer, a flame from a
candle, a lighted cigarette, or other ignition sources can cause the consumer's
hair to almost instantaneously engulf in flames.” They alleged that L’Oreal knew or should have known
that consumers who applied the Serum to their hair would accidentally come into
contact with ignition sources.
In 2004, the Serum launched with a warning, “Avoid Fire,
Flame, Smoking and Heat (Except For Styling Appliances) During Application and
Until Hair Is Completely Dry,” but this was removed sometime before 2008. Plaintiffs alleged that, because warning
labels are commonly placed on consumer products, they reasonably expected that
if the Serum was flammable it would be labeled accordingly. They also alleged that L’Oreal knew of the dangers,
among other things because a minor suffered serious injury when the Serum burst
into flames in her hair while she was using a heated straightening iron. Thus, they alleged, they overpaid for the
serum. The lack of the warning allegedly
rendered the product unreasonably dangerous, underlying their claims for
unlawful business practices under California's UCL, breach of the implied
warranty of merchantability, and fraudulent or deceptive omissions.
Plaintiffs argued that the failure to warn of flammability
was “unlawful,” relying on a regulation from the FDA, which provides that
“[t]he label of a cosmetic product shall bear a warning statement whenever
necessary or appropriate to prevent a health hazard that may be associated with
the product.” In informal guidance, the
FDA has stated that “cosmetics that may be hazardous to consumers must bear
appropriate label warnings. Flammable cosmetics are an example.” The court found that plaintiffs sufficiently
alleged a violation of this regulation.
L’Oreal argued that this claim should be dismissed under the
primary jurisdiction doctrine. The court disagreed: whether a flammable
cosmetic product should be labeled as such wasn’t the kind of “particularly
complicated issue” that is uniquely within the FDA's competence. Indeed, it’s a frequent topic of products
liability, and not like the “technical and policy questions” triggering the
primary jurisdiction doctrine. Moreover,
there’s no need to wait for the FDA to act, because the FDA’s informal guidance
already suggests that it believes that all flammable products must be labeled
as such, unlike the situation with “natural.”
The court also refused to dismiss the breach of warranty of
merchantability claim, since without a warning, the Serum is not safe for
ordinary use. “Unwarned consumers are
unaware of the risks presented by the product, and cannot make an informed
decision to avoid open flames while using the product or avoid using the
product in circumstances where they may be exposed to flames.”
Fraudulent omission: both California and NY allow consumer
protection claims for deceptive omissions when a reasonable consumer would’ve
been misled without the omitted information.
California requires materiality: that a plaintiff can allege that she
would’ve behaved differently if the information had been disclosed. Courts routinely find safety-related
nondisclosures material. But a duty to
disclose is also required, which only arises in certain circumstances. NY also requires materiality, and follows the
same rule of thumb about safety nondisclosures; it also required that a
defendant have a duty to disclose, when a “business alone possesses material
information that is relevant to the consumer and fails to provide this
information” (one of the circumstances also triggering the duty in
California). The court found that
plaintiffs stated a claim: the failure to disclose flammability was plausibly
material because safety-related, and defendants had a duty to disclose because
they knew the Serum was flammable (as the old warning label indicated) and
plaintiffs couldn’t practicably otherwise discover this. Plaintiffs might have discovered the
flammability through older versions of the label, but “it is unreasonable to
expect a consumer to seek out information regarding a product's safety in obscure
places.”
Further, plaintiffs alleged affirmative misrepresentations
that the product was a “leave-in” product and that it could be used with a
blowdryer. In prior versions of the complaint,
plaintiffs alleged that the product could ignite when used with a blowdryer or
other heated styling appliance, which would make the affirmative claims
misleading. But plaintiffs no longer made those allegations. Instead, they alleged that the product was
dangerous when used with a defective blowdryer, one that emitted sparks, and
also that it was unsafe to keep Serum-infused hair around open flames or other
sources of ignition. That wasn’t enough.
The standard was whether a reasonable consumer would be deceived under
the circumstances, and the statements here “would not lead a reasonable
consumer to believe that the product can be safely used with a defective,
spark-emitting blowdryer” or around open flames etc. “Consequently, although defendants may have
had a duty to warn consumers that the product is flammable for the reasons
mentioned above, there is nothing false or misleading about describing the
Serum as a ‘leave-in’ product, because this description affirms nothing about
the product's flammability.” The court
dismissed the affirmative misrepresentation claims.
Likewise, the claims for breach of implied warranty of
fitness were dismissed because they required a particular purpose—“a specific
use by the buyer which is peculiar to the nature of his business”—and plaintiffs
didn’t identify one, since the uses of the Serum alleged were the customary
uses.
The remaining fraud claims were, however, pled with
sufficient particularity. L’Oreal argued
that plaintiffs should have identified which chemicals were flammable and
why. The court thought this wasn’t
required by Rule 9(b), though it suggested that plaintiffs disclose their
expert report with details about the flammability.
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