Reasonable consumers may not be required to peel back labels in store to read drug facts

Zimmerman v. L’Oreal USA, Inc., 2023 WL 8587620, No. 22-cv-07609-HSG (N.D. Cal. Dec. 8, 2023)

This putative class action bringing the usual California statutory claims alleges that L’Oréal misleadingly advertises the sunscreen benefits of some of its cosmetic products, such as L’Oréal Infallible Fresh Wear 24HR Foundation. The front label statements claiming it provides “Up to 24HR Breathable Texture,” “Up to 24H Fresh Wear,” and “Sunscreen Broad Spectrum SPF 25” allegedly led Zimmerman to believe that the foundation provided 24 hours of sunscreen protection. But this protection lasts only two hours. 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.

Similarly, plaintiff Heuchan alleged that she purchased L’Oréal Infallible Pro-Glow Foundation, whose front label claims that it provides “Up to 24HR Foundation,” “OCTINOXATE Sunscreen,” and “Broad Spectrum SPF 15.” It also has a drug facts panel located underneath a peel-back sticker on the back label, directing users to “reapply at least every 2 hours” for sunscreen use. Plaintiff Giordano made similar allegations about “Lancome Teint Idole Ultra 24H Long Wear Matte Foundation,” with a front label claiming “Octinoxate Sunscreen” “Broad Spectrum SPF 15,” and “Up To 24H Color Wear & Comfort.” However, the complaint didn’t allege that the Teint foundation’s drug panel facts are located underneath a peel-back sticker on the back.

L’Oréal argued that it wasn’t plausible that a reasonable consumer would be deceived because the 24-hour statements clearly referred only to cosmetic benefits, and that a reasonable consumer would refer to the back panel. The court agreed with L’Oréal as to Giordano only.

The “Up to 24H Foundation” statement was ambiguous, but it was not clear that this ambiguity “can be resolved by reference to the back label.” “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.” So too with the Teint foundation, but the back label resolved any ambiguity. (As a consumer, I'd worry about being forced to buy anything I'd done that to!)