Target, Whole Foods Have Irritated Reactions To ‘Hypoallergenic’ Product Suits
This article was originally published in The Rose Sheet
The outcomes of proposed class actions against Target Corporation and Whole Foods Market will provide bright signals as to whether plaintiffs have traction in the courts to bring false-advertising suits against “hypoallergenic” cosmetic marketers. The retailers’ motions to dismiss are pending currently.
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The plaintiff in a proposed class action against Target Corporation for alleged “hypoallergenic” cosmetic fraud neglected to venture a definition for the term and focused to a distracting extent on claims ultimately found to be non-actionable puffery – e.g., “gentle.” Other hypoallergic suits pending around the US are built on sturdier ground and likely will be harder to dismiss.
In the absence of FDA regulations, federal courts generally are weighing hypoallergenic false-advertising arguments against the “reasonable consumer” standard, with varying results. However, Almay may have provided a more substantive basis for assessing the truthfulness of its hypoallergenic claims via a letter to FDA on the subject – albeit one from 1973.
A California federal judge is more receptive to J&J’s interpretation of “hypoallergenic” – as a term denoting reduced allergy risk compared with other products – than plaintiffs’ ingredient-based definition. Her ruling on the firm’s motion to dismiss differs sharply from a decision earlier this month in the same district concerning Whole Foods hypoallergenic claims, only adding to legal uncertainty.