Monday, June 20, 2022

Reasonable consumers don't know what every ingredient is and does

Anderson v. Unilever U.S., Inc., 2022 WL 2181575, No. 21-CV-3117 (KMK) (S.D.N.Y. Jun. 16, 2022)

Anderson alleged that Unilever’s “Deep Moisture Bodywash” label was deceptive and misleading for touting attributes such as “skin-natural nourishers” and being “microbiome gentle” when in fact the product “contains numerous ingredients which trigger negative skin reactions and are incompatible with maintaining a balanced microbiome, including essential oils, fragrances, preservatives, and surfactants.” She brought claims under NY GBL §§349 & 350 and Magnuson-Moss Warranty Act and for common law breach of express warranty/implied warranty of merchantability, negligent misrepresentation, fraud, and unjust enrichment. The court kept the consumer protection claims alive.

Unilever argued that reasonable consumers would understand that advertising that the bodywash is “microbiome gentle” means that the product as a whole was “microbiome gentle,” and not that each constituent ingredient is microbiome gentle (and therefore, non-synthetic). That was possible, but Anderson’s allegations were also plausible at the motion to dismiss stage. At this stage, “[w]here a representation is capable of two possible reasonable interpretations,” the Court is not free to reject “the misleading one ... simply because there is an alternative, non-misleading interpretation.”

The court rejected Unilever’s arguments that consumers should treat labels like they’re looking for perjury. Even if Unilever was correct that the term “microbiome gentle” was “grammatically” applied to the product as a whole, “the relevant question here is not whether Defendant’s representations as to the Product are, formally speaking, correct, but whether a reasonable consumer might be misled.” It did not matter whether a consumer who believed that the ingredients were “microbiome gentle” fell into logical fallacies (begging the question, the fallacy of composition, and the fallacy of division, if you’re wondering). “[T]he question before the Court is not whether it is correct (or the result of airtight logical reasoning) to interpret Defendant’s representations as to the Product in the manner that Plaintiff alleges, but whether a reasonable consumer could interpret Defendant’s representations as to the Product in the manner that Plaintiff alleges.”

Nor did the ingredient list resolve any “potential ambiguity” in the term.

[T]he Court fails to understand how the ingredient list on the Product could serve as a disclaimer here. It is common knowledge that cosmetic and personal care products, like the Product, are typically made up of a long list of ingredients, most of which are referred to by a scientific name with which an ordinary consumer would be unfamiliar. Thus, Defendant’s theory that a reasonable consumer could simply consult the ingredient list to confirm that the Product is microbiome gentle (and non-synthetic) would require the Court to credit the notion that a reasonable consumer would be familiar with what the many ingredients listed are and those ingredients’ properties, origins, and effects on the skin. This is plainly untenable.

Anderson also successfully pled a price premium.

On express warranty, she failed to adequately allege the required pre-suit notice, and breach of the implied warranty of merchantability failed for lack of privity.  This also got rid of the MMWA claims. Negligent misrepresentation failed for lack of a special relationship creating a duty. Fraud failed for want of sufficient scienter allegations. Unjust enrichment failed for overlapping with the other claims.

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