California Suit Challenges Unilever On Naturalness Of TRESemme Line
This article was originally published in The Rose Sheet
Executive Summary
“Shampoo trees” and “conditioner streams” indeed may not exist, but consumers still have expectations for cosmetic products marketed as natural. In an April 9 decision, the U.S. District Court for the Eastern District of California largely rejects Unilever’s motion to dismiss a consumer suit alleging that its labeling and marketing for TRESemme Naturals is fraudulent and potentially misleading.
Unilever PLC’s argument that reasonable consumers know cosmetics are manufactured and therefore not completely natural – that there are neither “shampoo trees” nor “conditioner streams” – failed to convince a California district court judge, who has denied the bulk of the firm’s motion to dismiss a consumer suit alleging deception.
The case, which seeks class-action certification, centers on labeling and marketing for Unilever’s TRESemme Naturals line, consisting of shampoo and conditioners that retail online for around $5 each.
California and Massachusetts residents Alba Morales and Lanie Cohen, respectively, filed their complaint in October 2013 in the U.S. District Court for the Eastern District of California, claiming they purchased TRESemme Naturals items at a premium to competing offerings under the impression that the products were natural as advertised and therefore free of “synthetic ingredients.”
The green leaf that accompanies the word Naturals on product labeling only reinforces the line’s natural positioning, the plaintiffs say.
In reality, however, TRESemme Naturals shampoos and conditioners contain “numerous” synthetic ingredients, including agents that release formaldehyde “or have a high risk of contamination by 1,4-dioxane,” a likely carcinogen, the plaintiffs say, citing the Environmental Working Group as a reference.
Their complaint includes a laundry list of “unnatural” ingredients – including surfactant ammonium laureth sulfate, “susceptible to contamination by carcinogens 1,4 dioxane and ethylene oxide”; DMDM hydantoin, a formaldehyde-releasing antimicrobial agent; propylene glycol, “associated with contact dermatitis and hives”; and undisclosed “fragrance” mixtures.
Risk information is attributed to EWG’s Skin Deep online database.
The plaintiffs note that “consumers have become increasingly concerned about the effects of synthetic and chemical ingredients” in personal-care and other consumer goods, and “companies such as Unilever have capitalized on the consumer appetite for ‘natural products.’”
They cite violations of unfair-competition and consumer-protection laws, among others, in California, Massachusetts and other states, seeking enjoinment, restitution, legal fees and damages.
“Reasonable” Consumers Know Better?
Unilever filed a motion to dismiss the case for lack of standing and other alleged deficiencies in January, contending that product labeling for the TRESemme Naturals line does not indicate the products are entirely free of synthetic ingredients or composed of 100% natural ingredients.
In fact, Unilever points out, the labeling lists all ingredients in the products and explicitly notes that the shampoos contain “lower [not zero] sulfates” while the conditioners are “silicone-free.”
Furthermore, the firm maintains that no reasonable consumer would expect Merriam-Webster’s dictionary definition of “natural,” cited by the plaintiffs, to apply to cosmetics, or “believe that the products were plucked from shampoo trees or bottled from conditioner streams,” adding that according to FDA, all cosmetics are “manufactured.”
In its memorandum, the firm cites a slew of court decisions to support its argument concerning the potential of natural personal-care claims to mislead “reasonable” consumers under relevant laws, including a similar suit against the Hain Celestial Group that was dismissed with prejudice in December 2013.
In that case, the Central District of California court asserted that “shampoos and lotions do not exist in nature” and sided with the defendant that the plaintiff could not “plausibly” have expected otherwise.
Additionally, Unilever notes that no objective definition of “natural” exists, that the term has not been defined by FDA and the term Naturals is part of a brand name on the TRESemme labeling rather than a descriptor denoting the products’ content.
Motion To Dismiss Largely Rejected
The California Eastern District Court largely rejects Unilever’s arguments as grounds for dismissal, citing legal precedent of its own, in an April 9 decision.
With regard to the firm’s assertion that mass-produced cosmetics by design are not entirely natural, the court states: “Even if defendant were correct that a cosmetic product cannot be ‘natural,’ it does not follow that labeling cosmetic products as natural is per se not misleading. Defendant’s argument leads to the opposite conclusion – namely, that labeling cosmetic products manufactured from artificial ingredients as ‘natural’ is misleading.”
Additionally, the court maintains that an objective definition of “natural” is unnecessary for the case to proceed, as “the relevant question is the meaning that consumers would attach to the term.” That, and the matter of whether Unilever’s business practices are likely to deceive a reasonable consumer, are not issues that can be resolved on a motion to dismiss, according to the decision.
The court asserts that the plaintiffs have sufficiently alleged economic injury as a result of their reliance on misleading statements made by the defendant, and therefore have standing to pursue action under California consumer-protection statutes.
Though class-action certification is still pending, the court did grant one aspect of Unilever’s motion, dismissing claims lodged by the plaintiffs on behalf of similarly situated consumers in states with fraud and consumer-protection laws like those in California and Massachusetts, because neither plaintiff purchased TRESemme Naturals products anywhere but their native state.
In an April 13 email, senior food and drug attorney Arnold Friede of Sandler, Travis & Rosenberg noted: “The decision in this case can be interpreted as an ongoing message to the cosmetics and other FDA-regulated industries that courts are, and will likely remain, sensitive to allegations of deception based on claims that a product that includes artificial or synthetic ingredients is ‘natural.’”