A federal judge has refused to dismiss putative class actions alleging that L’Oreal made outlandish claims about its anti-wrinkle products, such as that they “boost the activity of genes” and “stimulate cell regeneration.”
U.S. District Judge William Martini let stand 24 of the 26 counts in a dozen cases centralized in New Jersey, In Re L’Oreal Wrinkle Cream Marketing and Sales Practices Litigation, finding the plaintiffs sufficiently alleged fraud and other wrongs.
The 30 creams at issue belong to six product lines marketed by L’Oreal and luxury subsidiary Lancome Inc.: Absolue, Genifique, High Resolution, Renergie, Visionnaire and Youth Code.
The plaintiffs, all women, claim L’Oreal engaged in a false advertising campaign from the time the products were brought to market but knew or should have known they “cannot provide the promised age-negating results.”
The first suit was filed in June 2012, about three months before the Food and Drug Administration issued a letter directing L’Oreal, of Berkeley Heights, N.J., to stop advertising that its skin creams have druglike qualities.
The suits allege L’Oreal made scientific claims based on in vitro testing that used cells in test tubes and petri dishes—a poor indicator of the products’ effect on human skin. In addition, the tests were biased or included too few participants, the plaintiffs say.
L’Oreal employed subtle disclaimers using footnotes and asterisks, falsely claimed that the products are patented, and used photo edits to exaggerate their effectiveness, the suits claim.
The advertisements induced consumers to buy products they otherwise would not have, the plaintiffs contend.
One named plaintiff, Rosemarie Murphy, claims she spent a combined $140 on a one-ounce container of Genifique Youth Activating Concentrate and a half-ounce container of Genifique Eye Youth Activating Concentrate at Bloomingdale’s in Hackensack and used them regularly, but experienced no results.
The U.S. Judicial Panel on Multidistrict Litigation consolidated the cases a year ago and assigned them to Martini, who sits in Newark.
As of Tuesday, there were 12 class suits in all, lodged by plaintiffs in New Jersey, California, Illinois, Massachusetts and Florida.
L’Oreal sought to dismiss all the claims under Rule 12(b)(6), for failing to make out a claim on which relief can be granted, and Rule 9(b), requiring fraud claims to be pleaded with particularity.
Denying the motion, Martini said identification of a specific store is not necessary. The plaintiffs approximated when they viewed the advertisements and named specific products, he said.
Some plaintiffs identified specific advertising statements, and their claims “certainly satisfy Rule 9(b),” Martini said. As for those who pleaded more generally, L’Oreal “will be able to ascertain the exact statements identified in the Complaint” during discovery, he said.
Martini also turned away L’Oreal’s bid to strike claims—because of lack of standing—pertaining to 14 of the 30 products that weren’t purchased by any of the lead plaintiffs. He opted to save that issue for the class certification stage.
All the products at issue are closely related, within the same product lines and part of the same advertising campaign, Martini said. He also noted the federal courts are split on whether class representatives can pursue claims related to products they did not personally buy.
Martini did dismiss with prejudice two counts of unjust enrichment to the extent they are based on New Jersey law, which bars claims when the products were purchased from a third party.
Claims under the New Jersey Consumer Fraud Act and other states’ consumer fraud statutes, as well as claims of breach of express warranty, remain.
Caroline Bartlett of Carella, Byrne, Cecchi, Olstein, Brody & Agnello in Roseland, the plaintiffs’ counsel, says there have been no settlement talks, and the next step will be to establish a discovery schedule.
The class could be large because of the popularity of the products and the consumer fraud statutes, some of which provide a six-year limitations period, Bartlett adds.
The lead defense counsel, Jeremy Feigelson of Debevoise & Plimpton in New York, did not reply to a request for comment.