Category: Consumer/Pro Retail

Great ideas on the Retail spectrum in our industry, common practices, quotes, and ideas.

Gorilla Glue Lady Is A Mess, No Common Sense

~ Joseph Kellner

Tessica Brown said she had run out of her usual hair spray one day and made the decision to use the Gorilla Glue spray in the interim. As Brown explained, weeks had passed at this point and her hair was still not able to move. “My hair, it don’t move. You hear what I’m telling you? It. Don’t. Move,” she said at the time. “… So I’m tell you like this: If you ever, ever run out of Göt2b Glued Spray, don’t ever use this. Unless you want your hair to be like that forever.”

Over the weekend, Tessica Brown said to her followers on instagram that she was paying a visit to the St. Bernard Parish Hospital in Louisiana. Brown said hospital staff attempted to use nail polish remover and saline water on her head, which caused a burning sensation. “It burned so bad my heart started beating too fast,” she recalled, noting that she ultimately chose to check herself out instead of going through with 20 hours of this attempted remedy. From there, the aim was to continue that treatment from home, though that’s apparently not resulted in progress so far.

She shared an update on Instagram confirming she “will be leaving tomorrow to go see a surgeon.” She thanked those sending her love and shrugged off folks making jokes about her. “I really do love and appreciate everybody I mean everybody that truly has my back.” Hair experts and medical professionals alike have all tried to come together over the last few days to try to find a viable solution for Brown. Some of their suggestions have included using rubbing alcohol and acetone to break down the glue, and Brown even made a trip to the ER. However, nothing so far has been able to help dissolve the adhesive.

Tessica Brown has hired an attorney and is said to be weighing potential legal options in connection with the adhesive spray incident. Per their report, Brown felt that the labeling on the product which is said to have mentioned not using it on eyes, skin, and clothes was misleading. The Gorilla Glue brand released a professional statement via Instagram on Feb. 8, sending their well wishes to Brown. However due to the nature of its product’s use, they were not able to provide any help. “We are very sorry to hear about the unfortunate incident that Miss Brown experienced using our Spray Adhesive on her hair,” the company captioned the post. “We are glad to see in her recent video that Miss Brown has received medical treatment from her local medical facility and wish her the best.”

Days after going viral for the incident, the Beverly Hills plastic surgeon who offered a free procedure (worth an estimated $12,500) to Tessica Brown made good on his promise. “She’s been through a lot and I hope that you guys will learn from Tessica’s injuries or Tessica’s ordeal,” Dr. Obeng said. “Make sure that any time you guys grab something, make sure you read it.” Brown is planning to fly California on Wednesday to start the process, according to the publication. And while the removal is estimated to cost around $12,500, Dr. Obeng is reportedly providing the service pro bono.

Ulta lays off corporate employees

~ Joseph Kellner

Ulta Beauty laid off employees at its corporate headquarters and among its field management team yesterday as it works to reshape itself amid the ongoing pandemic. Spokeswoman Eileen Ziesemer declined to comment on the number of employees that were laid off but confirmed their last day was Jan. 12.

“While incredibly difficult, these decisions were made thoughtfully with a focus on resetting our corporate cost structure to operate more effectively and efficiently in the short-term as well as optimizing our enterprise capabilities to thrive in the long-term,” Ziesemer said in an email. “The associates leaving Ulta Beauty were of course treated with respect, compassion and support.” The layoffs hit roles across all corporate functions of the Chicago-area-based beauty chain, Ziesemer said.

It also eliminated open roles and reorganized some teams. She said the move expanded certain positions and “introduced a small number” of roles in investment areas. Like many retailers, Ulta has faced struggles during the pandemic. It closed its stores for seven or eight weeks during the shutdowns last spring, closed 19 stores permanently in the third quarter, and has eliminated jobs.

Makeup in particular has been a tricky category during the pandemic. Without excuses to leave the house, many have forgone wearing makeup for months. There are some bright spots, such as above-the-mask eye makeup, and pampering items, such as candles and bath products, executives said on Ulta’s earnings call last month. The shutdowns also drove traffic online. Ulta has 1,262 stores in the U.S., Ziesemer says. The company was founded in 1990. The company most recently reported its employment count before the pandemic. As of last February, Ulta employed about 18,000 full-time and 26,000 part-time workers, according to a filing with the Securities & Exchange Commission from last March. Ziesemer said the total number of corporate associates laid off yesterday was a “meaningful, but relatively small number of our total associates.”

Nail, Hair and Skin Pros Sue California Gov. Newsom

~ Joseph Kellner

The beauty industry joined restaurants in suing California Governor Newsom, requesting immediate and permanent reopening. The vast majority of the beauty industry is made up of women, first-generation immigrants and the LGBT community. Ten months after the Governor mandated salon closures, the state has failed to produce any “data and science” justifying the criminalization of the services of these state licensed professionals.

“Our small businesses, less financed and politically connected than multinational corporations, Hollywood and other so-called ‘essential businesses’, have become the go-to sacrificial lambs to the Covid gods,” said Professional Beauty Federation of California (PFBC) Counsel and Advocate Fred Jones. “This has been ruinous for thousands of our establishments and the livelihood of tens of thousands, without any justifiable basis.”

Lead counsel and high-profile LA attorney Mark Geragos commented: “What has become obvious is that the Governor and so called health officials never followed ‘science or data’ on closing down outdoor dining or capricious lock-downs of safe barbershops and beauty salons. Instead of following the science they followed the Lobbyists and allowed film companies to utilize hairstylists and makeup artists, while preventing the same services to be done in salons by the very same trained professionals. By definition this is ‘unequal treatment under the law’.”

“Cutting hair is a criminal act in only one State in the Union,” reminded PBFC President Ted Nelson. “Governor Newsom is arbitrarily and needlessly destroying the livelihoods of state licensed professionals who have the formal education and training to keep their clientele safe from infections, as the CDC has acknowledged. Shame on him!

Unilever Is In A Mess But Whats New

~ Joseph Kellner

According to the 49-page case, TRESemmé Keratin Hair Smoothing Shampoo and TRESemmé Keratin Smooth Color Shampoo, made by defendants Unilever United States, Inc. and Conopco, Inc., contain a preservative called DMDM hydantoin, which is known to leach formaldehyde when it comes into contact with water.

Uh Oh!

Given formaldehyde is a “well-known human carcinogen” that can cause cancer and other harmful reactions when absorbed into the skin, Unilever’s use of DMDM hydantoin in the TRESemmé Keratin Smooth products is “an entirely unnecessary risk” since safer and natural alternatives exist, the lawsuit argues.

Nevertheless, the suit alleges, the defendants have failed to properly warn consumers of the risks associated with using such a strong chemical on their hair and have even gone so far as to claim the TRESemmé Keratin Smooth products are safe.

“Defendants continued to conceal the dangers of the Products by failing to appropriately and fully recall the Products, by continuing to claim the Products were safe when properly applied, and by failing to warn consumers of the dangers attendant to the Products’ use,” the complaint scathes.

The lawsuit alleges Unilever marketed its “Keratin Smooth” line of shampoos to women who “wanted smooth, shiny, manageable hair with no frizz.” Through online marketing and the products’ labeling, the defendants allegedly represented that the TRESemmé products contained keratin, a protein found naturally in hair, and would “deeply nourish,” “gently cleanse,” and “repair hair.”

According to the case, however, Unilever failed to warn consumers that a preservative named among the products’ ingredients has been known by the defendants to cause or contribute to hair loss and scalp irritation. The suit charges that nowhere on the products’ packaging or in advertising did Unilever warn customers of the risks of using DMDM hydantoin on their hair and scalp and instead claimed the shampoo was safe when properly applied.

The lawsuit explains that DMDM hydantoin is a formaldehyde donor, which is a class of preservatives added to water-containing cosmetics to prevent the growth of microorganisms through the release of small amounts of formaldehyde. According to the case, the defendants until recently used the chemical in their TRESemmé Keratin Smooth line since keratin is a protein—i.e., a food for microbes—and has a limited shelf life.

Per the complaint, the use of formaldehyde donors, and particularly DMDM hydantoin, in cosmetic products has been linked to the development of allergies, dermatitis, hair loss and even cancer. The U.S. Food and Drug Administration, the suit says, considers DMDM hydantoin to be one of the top allergens “that cause the most allergic reactions from the use of cosmetic products,” especially since individuals can become more sensitive to the irritant over time. The case adds that irritation of the scalp is linked to hair brittleness and hair loss.

According to the suit, Unilever has known of the dangers associated with DMDM hydantoin for a decade or more given the chemical and several other ingredients were the subject of prior litigation against the company. Per the case, Unilever’s Suave Keratin Infusion product, which was advertised as formaldehyde-free, was recalled in 2012 following complaints of hair loss and scalp irritation. The lawsuit initiated against the company resulted in a $10.2 million settlement that was upheld by an appeals court in 2016, the suit says.

Though Unilever continued using DMDM hydantoin as a preservative and even publicly asserted that the chemical was safe for use in hair products, the company only recently reformulated its TRESemmé Keratin Smooth shampoos to replace DMDM hydantoin with other preservatives, the case avers.

Given the litigation against Unilever, not to mention the flood of consumer “horror stories,” some of which are cited in the lawsuit, the defendants should have been well aware of “the high potential for toxicity or allergic reaction” caused by use of the TRESemmé Keratin Smooth products, the lawsuit charges. Nevertheless, the company has allegedly “failed and continues to fail” to warn consumers about possible reactions and has even attempted to downplay or conceal the plethora of consumer complaints.

“Unilever continues to this day to advise consumers that these Products are safe to use as directed, without providing any disclosure concerning the complaints of hair loss and with no warnings regarding the hair loss that may result from their continued use,” the complaint reads. “Indeed, despite Unilever’s knowledge and awareness of hundreds if not thousands of complaints of significant hair loss and breakage caused by the Products, Unilever continues to claim the use of DMDM hydantoin it [sic] is safe and permits them to be sold to this day — without providing consumers with any revised warnings or disclosures.”

According to the suit, the defendants’ “reckless indifference” has allowed Unilever to realize “sizeable profits” at the expense of consumers.

This article was supplied by Class Action Claims.

Clean Beauty…or Dirty Business?

~ Joseph Kellner

The “clean” beauty movement is picking up steam. Health-conscious consumers are paying more attention to ingredients applied to their bodies and are looking for products made without harmful chemicals. In response to the demand, some popular cosmetics companies are now offering so-called, “clean” beauty lines. Companies considering joining this trend should take into account the substantial legal risks.

A look at the food industry’s use of the adjectives like “natural”, “clean”, “simple,” and “wholesome” illustrates the kinds of risks the beauty industry may face. When consumers began paying more attention to ingredients, companies began marketing their products with these health driven adjectives. However, this led to a barrage of class action lawsuits for false advertising under state consumer protection laws as plaintiffs lawyers argued that the claims made on the front of the label did not match the ingredients on the back of the label.

The food industry started to use the word “clean” after the use of “natural” resulted in a barrage of consumer lawsuits. As it turned out, however, the alternative claim also resulted in consumer class action lawsuits. The theory behind these suits is that “clean” is just a synonym of “all-natural” and signifies to consumers the absence of any synthetic chemicals. Similarly, it is argued that “wholesome” and “simple” are misleading consumers as to the real nutritional value of food products. This is at best an idiosyncratic view, not backed by legitimate consumer evidence. However, merely making the allegation is sometimes sufficient to survive a motion to dismiss, where the court must consider whether “no reasonable consumer” could share the plaintiff’s alleged interpretation.

Adding to the complexity is the difficulty of placing a sufficiently prominent and clear explanation, or definition, for such adjectives in an unavoidable location where the plaintiff cannot reasonably allege she failed to notice it. Courts have sometimes held that consumers need not be expected to turn around the bottle or package to read textual information on the back label before purchase.

We have seen false advertising claims creeping into the skincare industry as well, and this, coupled with the history of the food industry, should put the beauty industry on notice of the legal risks. For example, just last month, a lawsuit was filed in California State Court against the makers of Coppertone sunscreen. Prescott, et al. v. Bayer Healthcare Pharmaceuticals Inc., et al., No. 5:20-cv-00102 (N.D. Cal. filed Jan. 3, 2020). The suit alleges that Coppertone deceived consumers by labeling certain sunscreens as “mineral-based” when in fact chemicals make up a significant portion of its active ingredients. The plaintiff’s theory is that the headline “mineral-based” claim suggests to consumers that the product protects skin from sun damage exclusively with minerals.

In the “all-or-nothing” world of the plaintiffs’ lawyers, any ingredient call-out or characterization creates legal peril by negative implication. If the label says “clean,” the product can contain no synthetic substances. If the label says “plant-based,” the product should not have any synthetic or animal components – even if trivial in amount. Plaintiffs are routinely sending products to labs for rote chromatographic analysis, and the tiniest detectable amounts of disfavored chemicals can trigger lawsuits. In California, the consumer protection laws include California’s Unfair Competition Law, False Advertising law, and the Consumer Remedies Act. Companies making sales in California also need to be mindful of Proposition 65 which requires warning labels on products that contain any enumerated chemicals identified by the State to cause cancer, birth defects, or reproductive harm.

Since there are no regulations mandating the definition of such descriptive terms on cosmetic labels, these definitions (e.g., “clean”) can vary from company to company. The beauty industry should heed caution when using “clean” beauty claims. In order to avoid consumer confusion— and ultimately litigation— companies should define “clean” in a way that they can, and do, meet, and that definition should be available at the point of sale.