Tag: consumer

No More Cocamide DEA

~ Joseph Kellner

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Colgate–Palmolive & Lush join two dozen cosmetics manufacturers and retailers to stop the use of the chemical cocamide DEA from shampoos and other personal care products. 

You can clean your hair with just about anything.   But if you want a rich creamy foam to make it an enjoyable experience, there is one ingredient that you really must have.  Any good formulator will tell you that for a decent shampoo you really need to have a fair slug of cocamide DEA in it.  Nothing quite matches the performance this surfactant gives.   Consequently it has been one of the major ingredients in mass market and specialist shampoos and washes for years.

It came under a cloud in the nineties following suggestions that some impurities in it could, under the right circumstances react with other chemicals to form nitrosamines, some of which are carcinogenic.  Given that nitrosamines are all over the place from plenty of other sources, worrying about them in cosmetics seemed a bit precious.  For example they are created by the lightning in thunderstorms.  They are also commonly found in  food such as cured meat and whole meal peanut butter.  But nonetheless the EU cosmetic regulations were duly amended to limit the impurities and to forbid the use of Cocamide DEA with the ingredients it might react with. So belt and braces there.

And that you would have thought was the end of it.  A highly theoretical risk was identified and responded to with a heavy handed and probably unnecessary regulation.

No such luck.  With an actual link, albeit a highly tenuous one, between a cosmetic ingredient and an actual carcinogen it was only a matter of time before scaremongers got hold of it.  Cocamide DEA has been added to the list of chemicals that should be avoided by all the usual organization’s, websites  and manufacturers of high margin green products who trade on this kind of thing.

The latest wheeze is to threaten companies using this completely safe and legal material with court action.  Given that a court hearing would be bad publicity for the companies involved whatever the outcome, you can see why they caved in.

It is a shame, especially as the groups behind this kind of campaign have negligible levels of public support.  They would have little chance of using consumer pressure to force mass market brands to switch to inferior ingredients directly.  This is presumably why they have switched to litigation.

Read More: A cosmetic scientist’s beauty science blog where he shares his news and views on beauty products and the science behind them

 

 

 

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].

2013 In Review For the Real Hair Truth Organization/Jotovi Designs Inc

~ Joseph Kellner

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The blog (The Real Hair Truth)/organization (Jotovi Designs) did well this past year.  The “TRUTHFUL”  voice for the industry will always be here on this page. The truth of the industry will always be written and told by me. Even though you will not find it in Modern Salon, PBA, Salon Galaxy,  Hairbrained.me, ETC.  And my films will voice the truth of the industry, ‘The Real Hair Truth, The Beautiful Lies”. Thank you everyone for your support the last 7 years. We have did it on our own without the help of industry magazines, websites, or cosmetic brands.

Jotovi Designs Inc.

We have funded our books and films on our own and will continue to do so.  Jotovi Designs Inc. is not looking for any help financially from any beauty/cosmetic industry brands and will continue to do so!  The organization continues to help professionals in the industry and will continue to do so! This year will be the release of the second documentary called “Beautiful Lies”.  I thank everyone for their continued support and may all have a wonderful New Year!

Best Regards

Joseph Kellner

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 19,000 times in 2013. If it were a concert at Sydney Opera House, it would take about 7 sold-out performances for that many people to see it.

Click here to see the complete report.

Judge Rejects ‘Unfair’ L’Oréal Hair Product Class Action Settlement! Greed to the Lawyers!!!!!

~ Joseph Kellner

TheRealHairTruthLogo

 

A federal judge on Wednesday refused to grant final approval to a class action settlement over claims that L’Oréal USA Inc. included misleading labels on some of its hair products, finding that the proposed settlement was not fair to the majority of Class Members.

REAlhairtruth.com
Plaintiff Alexis Richardson initially filed the class action lawsuit in April, alleging that L’Oréal marketed some of its high-end hair products as “available only in salons,” even though they were sold in stores such as Target, Walgreens and other retail stores. Richardson argued that this labeling implies a superior quality product that allows L’Oréal to charge a premium price.

The L’Oréal hair product class action settlement was preliminarily approved on June 27, 2013. Under the terms of the proposed class action settlement, L’Oréal would be barred from marketing its products as “salon-only.” The proposed class action settlement did not offer Class Members any monetary award and precluded them from filing another class action lawsuit seeking monetary damages from L’Oréal in the future. Several Class Members filed objections to the class action settlement, arguing that the terms were unfair.

U.S. District Judge John Bates agreed with the objections, finding that the L’Oréal class action settlement would pay the attorneys for earning Class Members only a “limited” benefit. Judge Bates found that the class action settlement was unfair because the attorneys would be compensated while the majority of Class Members would not receive a monetary award, and consumers would be prohibited from seeking damages as a class, even if they had previously been unaware about this class action settlement.

“The settlement provides no monetary relief while rewarding counsel handsomely,” Judge Bates said in his Nov. 6 decision. “Moreover, the result achieved here could be characterized as worse than ‘settling’: Counsel seeks to release class members’ originally asserted classwide damages claims for precisely nothing. Regardless of the implications for calculating attorneys’ fees, the amount requested by plaintiffs and agreed to by L’Oréal creates the impression of unfairness.”

The L’Oréal hair product class action lawsuit initially sought monetary damages, but the claim was dropped during the settlement negotiations. While the class action settlement released L’Oréal from all future class action lawsuits related to the “salon-only” marketing issue, it did not release the company from individual actions.

Judge Bates found that the probability of a small monetary reward would prevent individuals from taking legal action against L’Oréal. Further, the class action settlement would essentially bar individuals who were unaware of the class action lawsuit from seeking monetary damages.

“It does not comport with due process to bind a plaintiff who is not before a court, and who is perhaps even unaware of a judgment, as to money damages claims, without notifying her of the suit and giving her a chance to opt out,” Judge Bates said. “Otherwise, that plaintiff might be surprised to learn that someone else has bargained away her damages claim without her knowing about it or having any say in it.”