Paul Mitchell plausibly not "cruelty free" because of entry into market requiring animal testing

Heagney v. John Paul Mitchell Sys., 2023 WL 4947974, No. 23-cv-00687-VC (N.D. Cal. Aug. 2, 2023)

A smoothly written opinion:

As the complaint tells it, Paul Mitchell has long marketed its business and its products as “cruelty-free.” The plaintiffs say they took Paul Mitchell at its word and bought some of those products. But Paul Mitchell, they allege, once imported those products into China and registered them with the Chinese government—at a time when Chinese law required that companies test cosmetic imports on animals as a condition of registration. And, according to the complaint, Paul Mitchell was not exempt from that requirement.

Read together and taken as true, these allegations plausibly suggest that Paul Mitchell tested some of its cosmetic products on animals and that its contrary “cruelty-free” advertising misled reasonable consumers.

Maybe there’s another explanation, like nonenforcement, but that didn’t defeat plausibility.  This also allowed breach of warranty claims to survive. Although not all the purchased products appeared in the Chinese import registry, “in its marketing, Paul Mitchell doesn’t just advertise that it sells ‘cruelty-free’ goods. It also promises that it is a ‘cruelty-free’ company—that it has never done animal testing, ever.” Because of the plausible allegation that Paul Mitchell broke its first promise as to some products, it was plausible that it broke its second promise as to all.

Statute of limitations: Most of the alleged purchases were made within the three-year or four-year periods that applied, but even as to the others, the delayed discovery rule was plausibly invoked. “Unlike the kinds of claims you see in other false-advertising or warranty cases, a promise that a product is ‘cruelty free’ is not something that a customer can easily test.” And any reasonable and diligent investigation wouldn’t have disclosed the alleged truth:

No article that Paul Mitchell cites suggests that the company imported its products into China when animal-testing was required. One PETA article calls out three cosmetics companies for animal-testing in China but does not mention Paul Mitchell at all. The 2012 PETA press release comes closer, but it commends Paul Mitchell for choosing to “pull out of the Chinese market entirely than hurt even one animal.” If anything, these sources suggest that Paul Mitchell did live up to its “cruelty-free” mandate; they could not have formed the basis of the consumers’ complaint.

However, the consumers lacked standing to seek injunctive relief. Unlike other situations, where consumers might “reasonably, but incorrectly, assume the product was improved” and buy it again, or avoid an improved version, even if they would “like to,” because they can’t “rely on the product’s advertising or labeling,” here consumers couldn’t be misled by the historical facts, which they now knew. Falsity in the past about whether the product had ever been tested on animals remains falsity in the future. No change in ads or in the product could make a difference.