Today’s case is part of a long line of proposed consumer class actions in which the ingredient lists and labels are perused for strained readings and interpretations lacking in common sense. Plaintiff brought a proposed class action alleging that defendant’s branding and advertising of its  “EverSleek Keratin Caring” products was false and misleading.  Devane v. L’Oreal USA, Inc., No. 19 CIV. 4362 (GBD), 2020 WL 5518484, at *1 (S.D.N.Y. Sept. 14, 2020). Plaintiff alleged that she and similarly situated putative class members suffered economic injuries when they purchased the products believing they contain Keratin.  Plaintiff alleged that she suddenly realized the products do not contain Keratin, which is a “a protein naturally present in human hair, skin and nails.”
Defendant moved to dismiss plaintiff’s amended complaint for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In addition to meeting the requirements of Rule 12(b)(6), a plaintiff alleging fraud or asserting a claim premised on an allegation of fraud must also satisfy the heightened pleading standard of Federal Rule of Civil Procedure 9(b), which requires such a party to “state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). To meet this standard, in the Second Circuit, “a complaint must ‘(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.’ ” Wood ex rel. U.S. v. Applied Research Assocs., Inc., 328 Fed. Appx. 744, 747 (2d Cir. 2009).
Defendant’s main point was that it is unreasonable for anyone to assume that the products themselves contain keratin, as they are Keratin Caring products and specifically state that the products “car[e] for the essential protein and keratin that is found in hair.”
Instead of just relying on the parties’ assessment of the labels, why shouldn’t the court take a look for itself?  And indeed, both parties submitted images of the shampoo and conditioner bottles. The fronts of the bottles read, in relevant part, “Keratin Caring” and “100% Vegan.” The backs of the bottles include actual ingredient lists—which did not include keratin. Moreover, the backs of the labels again indicated that the Products are “Vegan,” and further that they include “[n]o animal derived ingredients or by-products.”  The labels also described the function of the Products, that they “gently cleanse[ ] chemically straightened hair while caring for the essential protein and keratin that is found in the hair.” Id.
The court analyzed whether a practice is deceptive or misleading through the “reasonable consumer” standard, i.e., by analyzing whether the practice would be “likely to mislead a reasonable consumer acting reasonably under the circumstances.”  Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007). Under this standard, Plaintiff must credibly allege that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.  How could that be, given the labels? Both the front and back of the Products’ labels specifically say that the products are vegan. They thus cannot contain keratin, a human chemical. Then, none of the ingredients listed on either bottle includes keratin as an ingredient. It is not reasonable to assume that a product contains a certain ingredient when it is not listed in the ingredient list.
Finally, the products’ description itself stated, “EverSleek Keratin Caring system with sunflower oil, gently cleanses chemically straightened hair while caring for the essential protein and keratin that is found in hair.” Id. at *5.  Thus, as labeled, each product is  keratin caring, which is reasonably understood to mean that it cares for the keratin already found in the hair. Plaintiff thus did not meet the burden of demonstrating that a reasonable consumer could find that the Products claim to contain keratin. Let alone plead the fraud-based claims with any particularity.  Motion granted.