Tag: beautiful lies

Real Hair Truth Cosmetic/Beauty Product Injury Lawsuits

~ Joseph Kellner

the real hair truth

Injuries from cosmetic products can come in a wide variety of forms — from allergic reactions to infections and other complications. There are two main legal theories that a person injured by a cosmetic product (the plaintiff) could sue under: product liability and breach of warranty. This article discusses what a plaintiff in a cosmetic injury suit must prove under either theory, cases specifically related to allergic reactions, and the possibility of class action lawsuits.

Product Liability: The Basics

The most likely theory to be used in a lawsuit involving cosmetic product injuries is product liability. An injured plaintiff can sue both the manufacturer and/or the seller (the defendant) of the cosmetic product if his or her injury was caused by a defect, a defective design or improper labeling. Most states follow what is called the “strict product liability” rule, although a few still use traditional negligence rules.

A plaintiff suing under a strict liability theory simply needs to prove:

  • that he or she was the kind of consumer that the defendant intended to use the product
  • that the defect did not occur after the product was sold, and
  • that the plaintiff was injured.

This kind of theory is called “strict liability” because many of the requirements in a standard negligence case, like proof of a specific duty of care owed to the plaintiff, are not included. Most states adopted strict liability for mass-marketed consumer products because, among other things, the manufacturers needed to be financially responsible for their products, and not be allowed to escape liability simply because of the difficulty plaintiffs faced trying to prove negligence claims.

In a negligence case (in those few states that still use this theory for consumer products), the plaintiff will need to prove:

  • that he or she bought the product from the defendant
  • that the defendant should have known that the product could be dangerous if unaccompanied by proper warnings, or that the product had a defect
  • that the failure to warn the plaintiff, or the defect or defective design, injured the plaintiff, and
  • that the plaintiff didn’t do anything to cause the injury.

Breach of Warranty

A cosmetic product injury case based on a breach of warranty theory will be the same as other standard breach of warranty cases.

An injured plaintiff could sue for breach of an express warranty if the seller or manufacturer made specific guarantees that a product would have specific effects that the product did not have (note that this theory might not fit with most cases involving an actual injury).

The plaintiff could also sue for breach of an implied warranty that the cosmetic product was fit for normal use, i.e. the implied guarantee that no normal cosmetic product would cause an injury if used properly.

Finally, the plaintiff could sue for breach of an implied warranty that the product was fit for a specific purpose, i.e. that the defendant knew the plaintiff wanted to use the product for a specific purpose, but the product caused an injury when the plaintiff tried use it.

There are many state and federal laws controlling breach of warranty claims. Some breach of warranty claims may not be appropriate when the plaintiff is suing for physical injuries, if the law only allows compensation for the money lost on the product (what is called “economic damages”).

Some warranty laws, however, do allow a plaintiff to sue for physical injuries. Perhaps more importantly, proving a breach of warranty can help prove a strict liability or negligence claim. A plaintiff is not limited to suing under one theory, so including a breach of warranty claim in a cosmetic injury lawsuit will generally help a plaintiff’s case overall.

Injuries Caused by Allergies

If a manufacturer knows, or should know, that a product might cause an allergic reaction in some people, injured plaintiffs could potentially sue the manufacturer for failing to warn about the allergic reaction under a strict liability or negligence theory. A breach of warranty theory might also be possible if the allergic reaction is not extremely rare, i.e. the product was not fit for cosmetic use because some percentage of the population was allergic.

Class Actions for Cosmetic Product Injuries

If a cosmetic product causes many or all of its users the same kind of injury, then a class action may be possible. In a class action case, multiple plaintiffs with the same kind of injury from the same source sue the defendant in one lawsuit.

If someone is injured by a cosmetic product, they or their attorney should research whether there is already a class action case or a settlement fund for people injured by the product. Often, even though the case has settled, there will be a fund to pay those who were not a part of the original case.

Real Hair Truth what makes a cosmetic misbranded?

~ Joseph Kellner

The Beautiful Lies

The film “Beautiful Lies” release date will be in 2014

In our beautiful world cosmetics hold a strong life in the world of personnel beauty. According to the U.S Government this is a definition of what is “Misbranded”.  Realize my friends that in this day and age government is in everything you do, and with the past and current behavior of the U.S Government would you even take there word on just about anything. Politicians cannot even agree on anything anymore, there life span as a senator, congressman, house representative is for life. Your freedom of speech is going down the drain. So why would you take the word of the FDA. According to the United States Food and Drug Administration (FDA), its responsibilities include “protecting the public health by assuring that foods, cosmetics are safe, wholesome, sanitary and properly labeled.” This responsibility entails regulating a large number of companies producing this nation’s food, making appointments to the high-level positions within the agency very important.  Most high-level FDA employees have a background in either medicine or law, but one of the largest private-sector sources is the Monsanto Company. Over the past decades, at least seven high-ranking employees in the FDA have an employment history with the Monsanto Company.

Well aware of its accused ‘revolving door’ connection with the FDA and other government agencies, Monsanto has issued several press releases denying collusion with the government. In fact, it posted on its official website that collusion theories relating to these agencies, including the FDA, “ignore the simple truth that people regularly change jobs to find positions that match their experience, skills and interests.  ”

Monsanto’s statements help shed light on the balancing act regularly occurring on Capitol Hill when appointments to these top agency positions arise. The importance of the food, cosmetic industrys cannot be overstated and, therefore, the pending question remains: Do Americans want industry insiders regulating it, or those from the academic realm?

What makes a cosmetic misbranded?

Section 602 of the FD&C Act [21 U.S.C. 362] describes what causes a cosmetic to be considered misbranded:

“A cosmetic shall be deemed to be misbranded–

  • (a) If its labeling is false or misleading in any particular.
  • (b) If in package form unless it bears a label containing (1) the name and place of business of the manufacturer, packer, or distributor; and (2) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, That under clause (2) of this paragraph reasonable variations shall be permitted, and exemptions as to small packages shall be established, by regulations prescribed by the Secretary.
  • (c) If any word, statement, or other information required by or under authority of this Act to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.
  • (d) If its container is so made, formed, or filled as to be misleading.
  • (e) If it is a color additive, unless its packaging and labeling are in conformity with such packaging and labeling requirements, applicable to such color additive, as may be contained in regulations issued under section 721. This paragraph shall not apply to packages of color additives which, with respect to their use for cosmetics, are marketed and intended for use only in or on hair dyes (as defined in the last sentence of section 601(a)).
  • (f) If its packaging or labeling is in violation of an applicable regulation issued pursuant to section 3 or 4 of the Poison Prevention Packaging Act of 1970.

Note that under the FD&C Act, the term “misbranding” applies to–

  • False or misleading information,*
  • Lack of required information,
  • Conspicuousness and readability of required information,
  • Misleading packaging,
  • Improper packaging and labeling of color additives, and
  • Deficiencies where the Poison Prevention Packaging Act requires special packaging.

*Note: According to the FD&C Act, a determination that labeling is “misleading” includes considering both what the label says and what it fails to reveal:

“If an article is alleged to be misbranded because the labeling or advertising is misleading, then in determining whether the labeling or advertising is misleading there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, or any combination thereof, but also the extent to which the labeling or advertising fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the article to which the labeling or advertising relates under the conditions of use prescribed in the labeling or advertising thereof or under such conditions of use as are customary or usual” (FD&C Act, sec. 201(n); 21 U.S.C. 321(n)].

In addition, a cosmetic marketed in violation of the FPLA or any regulations issued under its authority is considered misbranded within the meaning of the FD&C Act [15 U.S.C.1456(a)]. For cosmetics offered for sale as consumer commodities, the FPLA–

  • requires further label information, such as the product’s identity [15 U.S.C.1453], and
  • authorizes the implementation of regulations to specify the proper presentation of required label information, require an ingredient declaration, and prevent deceptive packaging [15 U.S.C.1454 (c)]

The FPLA defines a consumer commodity, as it applies to FDA-regulated products, as:

“any food, drug, device, or cosmetic (as those terms are defined by the Federal Food, Drug, and Cosmetic Act …, and any other article, product, or commodity of any kind or class which is customarily produced or distributed for sale through retail sales agencies or instrumentalities for consumption by individuals, or use by individuals for purposes of personal care or in the performance of services ordinarily rendered within the household, and which usually is consumed or expended in the course of such consumption or use.” [15 U.S.C.1459(a)]

Note that the FPLA defines a consumer commodity by the way it is marketed, not the way it is labeled. Labeling a product with words such as “For Professional Use Only” does not keep your product from being considered a consumer commodity under the FPLA.

Labeling regulations are very complex. Detailed information on cosmetic labeling is available in FDA’s Cosmetic Labeling Manual and the labeling regulations themselves [21 CFR 701].

Real Hair Truth L’Oreal to Shelve ‘Salon Only’ Tag for Products!

~ Joseph Kellner

WASHINGTON (CN) – L’Oreal can settle false advertising claims over supposedly salon-only products that are sold in stores by changing its labels, a federal judge ruled.
Alexis Richardson had led a class against the cosmetics company on behalf of consumers who purchased L’Oreal’s Matrix Biolage, Redken, Kerastase and Pureology products after August 30, 2008.
The April 2013 complaint alleged that L’Oreal deceptively labeled the products as “available only in salons” while nevertheless stocking them in Target, Kmart and other non-salon retail establishments.
“Plaintiffs allege that the salon-only label implies a superior quality product and builds a cachet that allows L’Oréal to demand a premium price,” according to the settlement-approval ruling filed Thursday.
The plaintiffs had filed the suit in Washington, D.C., after resolving related claims from an earlier action in the Northern District of California.
“In the course of those negotiations, L’Oréal provided plaintiffs with extensive documents and information relating to its anti-diversion and labeling practices,” U.S. District Judge John Bates wrote.
“But plaintiffs allege that, despite L’Orèal’s efforts, the products are available in non-salon establishments, and argue that L’Orèal’s labeling and advertising for these products is hence deceptive and misleading.”
As part of the settlement, class representatives can petition for no more than $1,000 each, and L’Oréal will pay up to $950,000 in attorney fees, costs and expenses. The settlement otherwise provides only injunctive relief.
In his approval order, Bates explained the class’s reasons for not trying to certify a damages class.
“First, assessing the value of the salon-only claims to consumers would be difficult, and L’Oréal has never attempted to do so,” the ruling states. “Second, assessing damages on a class-wide basis would be even more difficult – the information provided during the negotiation process revealed substantial price variations among retailers and in different regions, and indicated that non-salon retailers often sell the products at a lower price than do salon retailers, making damages to those purchasing the product in non-salon establishments difficult to analyze.”
Bates said he would defer to counsel’s assessment.
“And class members will retain their right to seek damages in individual actions, dispelling many concerns about foregone payments,” he added. “In these circumstances, an equitable-relief-only settlement may be approved.”
If the settlement wins final approval, L’Oreal will remove the “salon only” label from all of its U.S. advertising and labeling on products distributed in the states.
It will also discontinue manufacturing the labels for its U.S. products, and it will remove the “salon-only” claims from its websites and from any promotion materials.
Both parties have agreed to publish legal notices in USA Today for one week, referring class members to a website that contains a copy of the proposed agreement. Any objections to the settlement must be filed before the Fairness Hearing on October 11, 2013, when the final settlement will be approved.  It seems L’Oreal will get off easy for all the damages they have done to the so-called professional beauty industry.  Their anti- diversion rhetoric is a bunch of bullshit. And always has been.  Too late, Too little the damage has already been done!

“The Beautiful Lies” short trailer for the film

~ Joseph Kellner
In August of this year 2013 the editing for the next film from the Real Hair Truth Series will begin. The title of the next film will be “The Beautiful Lies”. The film will encompass Entrepreneurs, Manufacturer Deception, Marketing, Ingredients, Product Labeling, Deceptive Labeling, Formulating your own Brand, Health and Welfare, Do You Know What You Are Using In The Salon?, And what’s in your Salon Products?. This so far has been a 4 year endeavor or filming, interviewing, traveling to create this film. I will have some very interesting interviews from OSHA, FDA for the topics of Health and Welfare. Being an entrepreneur is not an easy task and you will see a lot of interviews in the film regarding to entrepreneurship. The Up’s and Down’s of starting your own business from scratch, product lines, books, videos etc. Motivation, Perseverance, Ambition the film “The Beautiful Lies” covers it all. The film will be completed by December 2013. This film was solely funded by Jotovi Designs Inc., and is not seeking any form of Sponsorship. And as of February 11, 2011 “The Beautiful Lies” is copyright on this website including, without limitation, text, Images, software, logos, icons, and sounds recordings. Films and html code is owned or licensed by Jotovi Designs Inc.  All editorials, interviews, graphics on this site are protected by U.S. copyright and International Law. And is solely the full property of Jotovi Designs Inc. Jotovi Designs Inc. is a registered trademark with the U.S. Library of Congress. All rights are reserved.  Any destruction, copying, sales, advertising,  of this film by any party, and without the prior consent of Jotovi Designs Inc. will be prosecuted to the fullest extent of the U.S Copyright and Trademark Law in the United States. Jotovi Designs Inc. does not endorse or conduct business with any or all the party’s interviewed in this film. This film was financed by Jotovi Designs Inc. and by no other parties. All party’s involved in this (Featured film) including, Editors, Sound Technicians, Paid Interviewed Personnel, Illustrators, Manufacturers, Videographers, Producers have been paid fully by Jotovi Designs Inc. and have no future claims or holdings to this (featured film) The Beautiful Lies.

Trailer for the film Beautiful LieS

~ Joseph Kellner

“Beautiful Lies” produced by Jotovi Designs, Inc., will be released in  December 2013.

“Beautiful Lies” will encompass entrepreneurs, manufacture deception,
marketing, ingredients, product labeling, deceptive labeling,
formulating your own brand, health and welfare.

This film was solely funded by Jotovi Designs Inc., and is not seeking
any form of sponsorship. And as of February 11, 2012 “Beautiful Lies”
is Copyright in this Website (including, without limitation, Text,
Images, Software, Logos, Icons, Sounds Recordings. Films and HTML
code) is owned or licensed by Jotovi Designs Inc. All editorial
content and graphics on this site are protected by U.S. copyright.