Target Cruises Past Hypoallergenic Cosmetic Suit, But Other Defendants On Rockier Road
This article was originally published in The Rose Sheet
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.
You may also be interested in...
According to Cosmetics Europe, at least “several” EU Member States are expected to be monitoring the marketplace for compliance with guidance developed by a European Commission working group, key aspects of which – concerning “free from” and “hypoallergenic” claims – went into effect 1 July.
The Cruelty-Free Cosmetics Act, passed Aug. 31, conceivably could give rise to consumer suits alleging violation of California’s Unfair Competition Law due to companies’ alleged use of prohibited animal testing to develop cosmetic products or substantiate their safety. Regardless, claiming exemptions under SB 1249 promises to be risky business with limited rewards.
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.