“Keratin Caring” doesn’t convey keratin content to reasonable consumers

Devane v. L’Oréal USA, Inc., 2020 WL 5518484,  19 Civ. 4362 (GBD) (S.D.N.Y. Sept. 14, 2020)

Devane sued for breach of express warranty, breach of
implied warranty, fraud, and violations of the Florida Deceptive and Unfair
Trade Practices Act (FDUTPA), New York General Business Law (NYGBL), Florida
False Advertising Statute (FFAS), and Alabama Deceptive Trade Practices Act (ADTPA)
based on L’Oréal’s branding of its “EverSleek Keratin Caring” products that
allegedly misrepresented that they contained keratin, a protein naturally present
in human hair, skin, and nails. The court granted L’Oréal’s motion to dismiss. In
essence, it agreed with L’Oréal that it was unreasonable to assume that the products
themselves contained keratin, as they specifically stated that they “car[e] for
the essential protein and keratin that is found in hair.” The backs of the
bottles include ingredient lists—which do not include keratin; the front and
back indicate that the products are “Vegan,” and further the back says “[n]o
animal derived ingredients or by-products.” Under these circumstances, it wasn’t
reasonable to assume that a product contains a certain ingredient when it is
not listed in the ingredient list. The label said multiple times, including on
the center of the front labels, that they were “Keratin Caring” products, and
it was “reasonable to understand this to mean that it cares for the keratin
already found in the hair.” [This is the wrong framing: we need to know whether
it was unreasonable to read the label otherwise; there can be multiple
reasonable interpretations.] In conjunction with the “extremely clear” ingredient
list, that meant that plaintiff didn’t plausibly plead that a reasonable
consumer could understand that the product contained keratin.

The court rejected Devane’s argument that L’Oréal’s argument
wrongly “presupposes a higher level of knowledge on the part of the reasonable
consumer than is appropriate.” “Even if the average reasonable consumer is
unaware of what the word ‘vegan’ means, or did not previously know that keratin
is found in one’s hair, this nonetheless does not counter the number of times
that the label makes it clear that (1) keratin is not an ingredient, and (2)
the Products are intended to care for the keratin in one’s hair….
Reasonableness cannot be based solely on what the consumer might have known
prior to picking up the Products and examining the labels.”

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