"24 Hour" cosmetics could be misleading as to sunscreen effect

Zimmerman v. L’Oréal USA, Inc., 2023 WL 4564552, No. 22-cv-07609-HSG (N.D. Cal. Jul. 17, 2023)

This is another lawsuit over “24 Hour” cosmetics, this time focusing on the fact that the sunscreen in the products needs to be reapplied every 2 hours, making it more a 2-hour beauty line. The foundation’s front label statements claim it provides “Up to 24HR Breathable Texture,” “Up to 24H Fresh Wear,” and “Sunscreen Broad Spectrum SPF 25,” but the drug facts panel, located underneath a peel-back sticker on the back label, directs users to “reapply at least every 2 hours” for sunscreen use.

Zimmerman didn’t have standing for two identified, unpurchased products—L’Oréal Pro-Glow Foundation and Lancôme Foundation—where the alleged misrepresentations were not substantially similar to L’Oréal Infallible Foundation, the product Zimmerman purchased. L’Oréal Pro-Glow Foundation advertises “Up to 24HR Foundation,” and Lancôme Foundation advertises “Up to 24H Color Wear & Comfort.” As for other products, the court couldn’t assess substantial similarity without images or detailed descriptions of the labels.

Zimmerman had standing to seek injunctive relief, because she might not be able to tell if the labels are accurate if L’Oréal changes the SPF protection duration; or, if L’Oréal alters the front label to state that the SPF only lasts two hours and lowers the price, she might be willing to pay. (I’m not sure the first is technically possible, but I also don’t think it’s unreasonable for consumers not to know that.)

There was no FDCA preemption.  

And it was plausible that a reasonable consumer could be deceived. L’Oréal argued that the 24-hour statements clearly referred only to cosmetic benefits, but the court disagreed; “a reasonable consumer could believe the statements also include SPF protection and would not see the reapplication instructions at the time of purchase because they are buried underneath a sticker.” Where “a front label is ambiguous, the ambiguity can be resolved by reference to the back label.” The front label statements were ambiguous; “24H Fresh Wear” and “24HR Breathable Texture” could be interpreted to include sunscreen protection. But it wasn’t clear that the ambiguity could be resolved by reading the back. “The Court cannot conclude as a matter of law that a reasonable consumer would peel back the label in the store, before purchasing the product, to find and read these instructions.”