Consumer Law

"Keratin Caring" doesn't convey keratin content to reasonable consumers

By Rebecca Tushnet

Devane v. L?Oréal USA, Inc., 2020 WL 5518484,  19 Civ. 4362 (GBD) (S.D.N.Y. Sept. 14, 2020)

Devane sued for breach of express warranty, breach of implied warranty, fraud, and violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), New York General Business Law (NYGBL), Florida False Advertising Statute (FFAS), and Alabama Deceptive Trade Practices Act (ADTPA) based on L?Oréal?s branding of its ?EverSleek Keratin Caring? products that allegedly misrepresented that they contained keratin, a protein naturally present in human hair, skin, and nails. The court granted L?Oréal?s motion to dismiss. In essence, it agreed with L?Oréal that it was unreasonable to assume that the products themselves contained keratin, as they specifically stated that they ?car[e] for the essential protein and keratin that is found in hair.? The backs of the bottles include ingredient lists?which do not include keratin; the front and back indicate that the products are ?Vegan,? and further the back says ?[n]o animal derived ingredients or by-products.? Under these circumstances, it wasn?t reasonable to assume that a product contains a certain ingredient when it is not listed in the ingredient list. The label said multiple times, including on the center of the front labels, that they were ?Keratin Caring? products, and it was ?reasonable to understand this to mean that it cares for the keratin already found in the hair.? [This is the wrong framing: we need to know whether it was unreasonable to read the label otherwise; there can be multiple reasonable interpretations.] In conjunction with the ?extremely clear? ingredient list, that meant that plaintiff didn?t plausibly plead that a reasonable consumer could understand that the product contained keratin.

The court rejected Devane?s argument that L?Oréal?s argument wrongly ?presupposes a higher level of knowledge on the part of the reasonable consumer than is appropriate.? ?Even if the average reasonable consumer is unaware of what the word ?vegan? means, or did not previously know that keratin is found in one?s hair, this nonetheless does not counter the number of times that the label makes it clear that (1) keratin is not an ingredient, and (2) the Products are intended to care for the keratin in one?s hair?. Reasonableness cannot be based solely on what the consumer might have known prior to picking up the Products and examining the labels.?

Full post as published by 43(B)log on September 21, 2020 (boomark / email).