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Ninth Circuit Narrowly Views California’s Consumer Laws
Opinion Says There’s No Violation Where Representation Is True That Product Is Bereft of Certain Ingredients Even If Equally or More Harmful Substitute Ingredients Are Present
By a MetNews Staff Writer
No action lies under California’s consumer-protection statutes based on an allegation that a product is represented to be free of specified potentially harmful ingredients, where that claim is true, even if the replacement ingredients are no safer or are actually more deleterious, the Ninth U.S. Circuit Court of Appeals has held.
Three plaintiffs, in a putative class action, predicated their claims on the labeling of defendant Madison Reed’s Radiant Hair Color Kit as being “[f]reed of ammonia, parabens, resorcinol, PPD, phthalates, & gluten.” District Court Judge William H. Orrick of the Northern District of California found that the product is, indeed, free of those ingredients and, necessarily, the claims under California’s Consumer Legal Remedies Act, Unfair Competition Law, and False Advertising Law must fall.
Other claims, he determined in his order dismissing the action without leave to amend, were based on mere puffery.
Affirmance came on Wednesday in a memorandum opinion by Circuit Judges Daniel Aaron Bress, Anthony Johnstone and Senior Circuit Judge Sidney Thomas.
Appellants’ Contention
In their brief on appeal, the plaintiffs argued:
“The reason that Defendant’s marketing works is because, for consumers who dye their hair, the ‘Free of’ representation has a specific meaning and indicates the Product is safer than traditional hair dye products. Ammonia, resorcinol, and PPD are viewed by reasonable consumers of permanent hair color products as unsafe to human health and bad for hair, and Defendant routinely touts as much in order to sell its alternative formula.”
The brief continues:
“Unfortunately, unbeknownst to consumers, Defendant replaced ammonia, resorcinol, and PPD with chemicals that are just as unsafe or worse than what they replaced. In other words, the purportedly safer Product is not safer and causes as much, if not more, damage to hair than the ammonia, resorcinol, and PPD in traditional hair color formula.”
Recognized Carcinogen
The plaintiffs noted, by way of example:
“[T]he Product replaced ammonia with ethanolamine, which is produced through a chemical reaction of ethylene oxide (a carcinogen according to the Environmental Protection Agency) with ammonia. Unfortunately, the Product’s barely intelligible ingredient list does nothing to cure Defendant’s deception because the reasonable consumer is not likely to know what this chemical is, let alone know that it replaced ammonia and is less healthy and causes more damage to hair.”
The brief elaborates that “ethanolamine…is known to cause hair loss and more damage to hair than ammonia, as evidenced by studies performed on it and as experienced first-hand by Plaintiffs.”
It adds:
“[R]esorcinol was replaced with 2-methylresorcinol, a chemical that can disrupt the thyroid’s function. Thus, Defendant’s removal of resorcinol only gives consumers a false sense of hope that the product is safer when it is not.”
Representations Cited
The plaintiffs—Keppie Moore of Altadena, who purchased hair dye at a store in Pasadena, Molly Brown, of Novato, California, and Audrey Sheffler, of Ohio, who bought the colorant online—pointed to representations by Madison Reed that it designs its “products with ingredients that nurture your hair and avoid those that don’t,” and that it excludes “harsh ingredients.”
They cited other promotional statements, including these:
“When it comes to our formulas, we don’t mess around. We’re as passionate about what we put into our formulas as what we leave out.”
“[A]fter you use our Radiant Hair Color, your hair won’t feel dry or straw-like the way it sometimes can after coloring. No thank you! Your strands will actually look and feel healthier, thanks to three hero ingredients—keratin, argan oil, and ginseng root extract.”
Madison Reed’s Position
The manufacturer maintained that Orrick’s decision is unassailable because it truthfully represented that certain ingredients are not present in its hair-dye products.
It argued in its brief:
“[A]s Plaintiffs have repeatedly admitted, Madison Reed’s products do not contain any of these ingredients. Instead, Plaintiffs sued under the theory that this admittedly accurate statement is illegally deceptive based on a series of potential inferences consumers might make comparing certain attributes of these absent ingredients and their replacements.
“California law precludes such strained and attenuated theories of deception. Not only do Madison Reed’s products not contain the listed ingredients—as represented—but any questions consumers may have about what ingredients are contained may be answered by referring to the ingredient list.”
Ninth Circuit Opinion
The Ninth Circuit said, with respect to Moore’s claims:
“Moore admits that the statements on the front of the packaging were true and that the list of ingredients on the back of the package was also accurate. She argues that the statement on the front packaging that the product was ‘free of’ specified ingredients implies something material about their replacements. However, the statements on the label were accurate….”
The opinion adds that nothing on the packaging spawns a misimpression and, in fact, the back of the packaging lists the actual ingredients.
It declares that Orrick “properly determined that the remaining claims failed because the referenced statements were either accurate or puffery.”
The judges found that many of Brown’s claims are time-barred and those that aren’t are infirm for the same reason as Moore’s claims, and that Sheffler failed to counter Orrick’s determination that, as an Ohio resident, she has no standing to invoke the California statutes.
The case is Brown v. Reed, 22-16415.
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