liar, liar, hair on fire? claims against L'Oreal proceed

Guido v. L'Oreal, USA, Inc., 2013 WL 454861 (C.D. Cal.)

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.