Tag: Marcia Teixeira

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

TheRealHairTruthLogo (1)mediumsize

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.

L’Oréal Hair Product Class Action Lawsuit Settlement. Burn In Hell!!

~ Joseph Kellner

TheRealHairTruthLogo

As usual in our industry, See no Evil, Hear no Evil, Speak no Evil. None of the So-called industry websites, comic books, or fan clubs will do no reporting against no major manufacturer in my industry. It is common knowledge for manufacturers to supply the latest and greatest to the industry sheep. For the purpose of increasing the financial pyramid for themselves. No longer is there a honest approach of informing the beauty industry of news about class action lawsuits for the betterment of the industry. WHY YOU SAY? Because industry giants sustain the beauty industry and give financial backing to the comic books, websites and fan clubs. If one of the three prior mentioned “bite” the hand that feeds them there would be no existence for that website, or magazine or organization.  So in general you will not know who, what, where in this industry. You will be led unless you do any investigative work by yourselves.

REALHAIRTRUTH

L’Oréal USA Inc. has reached a class action lawsuit settlement over claims it falsely marketed shampoo, condition and styling products under the Matrix, Kérastase, Redken and Pureology brand names.Under the proposed settlement agreement, L’Oréal will modify the labels of these products to remove certain misleading language.

The L’Oréal settlement will resolve a class action lawsuit (Richardson v. L’Oréal USA Inc.) that alleges L’Oréal misled consumers into believing they could only purchase the Matrix, Kérastase, Redken and Pureology products exclusively in professional salons, when consumers can purchase the products in major retail outlets.

REAlhairtruth.com

L’Oréal denies any wrongdoing, but has agreed to a class action lawsuit settlement to resolve the litigation.

Class Members of the L’Oréal class action settlement include all consumers nationwide who purchased the L’Oréal products for personal, family or household use on or after August 30, 2008. There is no monetary benefit for Class Members. Instead, L’Oréal has agreed to remove from the labeling of these hair products the following “claims”:

  • “for sale only in professional beauty salons”;
  • “exclusive salon distribution”;
  • “exclusive to Kérastase consultant salons”;
  • “only professional”;
  • “only in salon”;
  • “sold exclusively in salons”;
  • “available only at fine salons and spas”;
  • “available only at fine salons”; and
  • similar claims in English or other languages which may be read as suggesting availability for purchase exclusively in professional salons.

Since there is no monetary benefit for Class Members, there is no claim filing deadline. If you wish to object to the L’Oréal product class action settlement, you must do so by September 11, 2013.

Will the industry inform you about this?

NO THEY WONT, MY FRIENDS.

THEY WILL NOT!

Because the industry is L’oreal, And they do not want you to know any wrong about these companies. God Forbid they would reach out to you and explain the particulars of this lawsuit and tell you how to apply for claims.

Gerard Scarpaci, Joshua Flowers, Javier VanHuss Show there true professionalism on Hairbrained.me!

~ Joseph Kellner
Beautiful Lies
My dear friends please excuse the language from these individuals this is a editorial about my first documentary, “The Real Hair Truth” from a blog called Hairbrained.me.
 
 Reply by Javier VanHuss on December 6, 2010 at 6:27pm
the only real hair truth here is that you are probably one of those dudes who has a couple buttons missing from the top of your shirt, peddling your industry “know how” through whatever book or dvd it is that you cooked up.you dont know anything about my payment formula, my in salon education program, or much else for that matter.this industry is much like the railroads of america, built on cheap labor that helps everyone for the greater good. sure, im using young kids fresh out of beauty school instead of chinese immigrants, but thats neither here nor there.the only thing really bringing me down right now is fuckdumps like you who try to tell everyone what the “real truth” is, when you probably dont have a fucking clue yourself.eat shit.

Permalink Reply by Michael Sean Georgianni on December 9, 2010 at 4:42pm

When I started just eight years ago, I assisted for two years with two to three other jobs to pay my bills. I did this just so I could get a better than school education. I’m just now opening my own salon from scratch. People booth rent mostly because they want to scam on their taxes and not take any responsibility as a group. As far as education goes, it’s your responsibility when you take a job, to see if it’s really being offered. I still buy food and everything else just the way it was first made up.So why shouldn’t I have the same payment structure that has be working for this long? Even before lazy, crying stylist who can’t promote themselves. It’s called business and if you can’t do it then shut it. It is very hard to get the proper training to be a great hair stylist and it’s very hard to own your own business. So the real hair truth is man up and get yours with pride. Just like the rest of us.

Permalink Reply by nicole ely on December 10, 2010 at 6:45am

I am sure there are lazy crying employees not matter where you work.  Sometimes they are lazy and sometimes they are crying because of work organization and conditions.  Wow! it is sad to realize that this seems to be the common thought about stylists on this subject.  Hopefully, this is a statement of a few and not the majority.

I think sylists attitude can be directly related to their environment, pay structure and lack of benefits.  Some salon’s take a large percentage of the ticket plus a large service charge on top of that.  How this is managed is directly related to how attutdes are in salon’s.  Why should syslists not push for the highest pay, best benefits and a well run business.  Do we strive for this?  No, it’s commission we want. Why not get the added benefits if offered?  Some are offering and the one’s who can afford it are organized, successful work environments.  I have felt first hand the struggle of a new business owner to get employee’s to work for little to nothing.  In reality something appealing has to be offered, because the competion for good hairstylists is great.  Don’t forget the noncompetes and lack of access to client info in case you decide to go elsewhere.

It seems desperate to make the statement that stylists are lazy freeloaders just because they don’t want to go into a businesss (that they don’t know) and be expected to build the business for nothing or on the hope they might get one of their three walk in’s a day.

Permalink Reply by nicole ely on December 6, 2010 at 2:37pm

One thing I found out about myself is that I was alot better hairstylist than owner and manager. That is why there are hair salon’s on every corner. Just because you are a good hairstylist does not mean you should own a business. There are so many out there starving for hairstylists and assistants. Not all of us are going to be an Arrojo and so on. If you are unable to get people to work for you at commission only, and you can’t pay people to work for you. You are paying an enormous amount for booth rent. 😦
Permalink Reply by Todd Phillip on December 6, 2010 at 7:14pm
It really comes down to what kind of a business you run.If you are a new business and have little overflow of new clientele, with under capitalized business funding for PR and Marketing which would bring that flow to the table…I would have to say there would be no way to provide a “base guarantee”…I would never use the word salary as it is separate from a commissioned employee.With that being said the simple answer to such an applicant would be you would feed him when you can but he would need to be proactive in self-promotion and you as a business owner would need to give a better percentage on the commission…but no guarantee as that would be needed for business cost and development.
As for the statement said that the salon is responsible for 20% of the clientele,..It sound out of proportion but then again there are different business structures..if that is the case and the stylist is providing 80% of the clientele then it would be likely that the stylist would have a high commission percentage, and vis/versa

Permalink Reply by Javier VanHuss on December 7, 2010 at 1:10pm

so, what IS the % of clientele that a salon owner is responsible to provide? if the answer is above 50%, then whats the point of urging stylists to promote themselves?i opened a salon for one reason, because i couldnt find a place to work. bottom line. i never wanted to be an owner, and to tell you the truth i struggle with it. but im doing the best i can in a cut throat industry, where i literally have 6 competitors within walking distance.my initial question was because i am encountering a LARGE amount of applicants from Paul Mitchell The School (a couple miles down the road), who don’t even feel like they need to assist (a whole other discussion) and who think that they can make 100K in their first year out of school because thats what they have seen on stage.when i assisted, in like 2001-2002, you got hourly as an assistant and then once that was done, you were on your own. i worked for a chain (30+ salons) and that was the way it was in the entire company.
i had never even heard of salary for a stylist until about 4 years ago, when a salon i had previously worked for was paying stylists an hourly wage and that was it. no commission on top of that, and you were basically a slave to the salon. sure, great if you had a slow day/week but not much room for advancement.
the only other place i had heard of an hourly wage was Supercutz, etc.

Permalink Reply by JoshXO Fighting!!! on December 8, 2010 at 10:32pm

BWAHHAAHAHAHA….. wow. I have never seen such blatent Douchebaggery in all my years on the internet. Lets go ahead and break your post down now, shall we?It is very sad to see you profile picture matches your IQ, Business owners like you (wannabee) will not ever rise to the cream of the crop. Your listing on this site reminds me of someone who has to been heard and seen because of your lack of professional knowledge and talent. When did you start to become a writer, maybe you should try something else like cleaning toilettes which matches your mouth’s aptitude.. Well after a quick Google search I wanted to see what kind of work Mr. Kellner “Crusader of Hairdressers” actually does. A person I had never “seen” or “heard” of until he came to my favorite little corner of the internet and started peddling his piece of shit “LOOK AT ME!!!” project. HERE ARE SOME OF HIS HAIRDRESSING GEMS AND SKILLS EVERYONE!
 .
Sir if that is the best you can muster after 24 years of being a hairdresser I suggest you should be the one cleaning toilets. You should fire your photographer even though I like her sweet side pony.

I am an owner of 3 salons, Yelp search came up with 1. Unless you own a couple of Fantastic Sam’s franchises. 2 films ( all that have been in film festivals.) Your years in gay porn don’t count. bachelors degree (marketing), What did they teach you? To go on to community sites and spam every thread with pleas for people to buy your movie? Seriously dude go back and ask them for a refund…. I’ll wait. 24 years of being a hairdresser. It appears your skill set stop evolving after 10 years. It looks like around 1993 you just said “Fuck it. Im gonna do hair this same way for the rest of my life!” Congratulations dude you wasted almost a quarter of a century doing ugly hair. HIGH FIVE BRO!!! head of the Miss Universe pageants. There is just so much to rip on here about this dog and pony show that’s a cut-rate Miss America pageant, But, I think you just stating it made you look dumb enough. Lets move on. If you need to post a question to get the answers to a simple question you need to leave my profession.

Ya know broseph, THATS WHAT THIS PLACE IS ALL ABOUT. Maybe your to busy pushing your movie to actually read any of the content. But harebrained is a COMMUNITY where hairdressers should feel comfortable posting questions and having other people CONTRIBUTE with their experience and helpful advice. Something you obviously know nothing about. Here’s a link to all the discussions Kellener has replied to and how helpful He’s been http://www.hairbrained.me/forum/topic/listForContributor?user=lzkxf…nothing but peddling. Also please stop staying “My profession” if I am in “Your” profession I’m just going to start calling myself a racecar driver that happens to do hair.I thank you for your blog post and I will encourage professionals to see the example you portray to young professional, and veterans. I’m sure if they had a choice between being an angry fucked like Jav or an irrelevant hypocrite like yourself they would pick Jav.

And by the way I am laughing all the way to the bank everyday for the worldwide sales of my film Selling the backlog of copies that didn’t sell and were sitting in your garage at a flea market in Tijuana is hardly “Worldwide” We help people we don’t belittle them and we tell the story of the profession the way it is! Wow your original post to Jav is in total contrast to this statement oh the ugly face of hypocrisy.

Cant take the truth? Hit the road asshole. No you’re the one coming off like an asshole. Please get the fuck off the internet your just making yourself look worse. A portion of the proceeds from this Documentary will go to a Non-Profit fund for Hairdressers who cannot afford Advanced Education. Why not just give them a copy of your movie? If its as good as you think it is they could afford their own advance training. Perhaps you should keep all the money to yourself and go back to beauty school. Twenty Scholarships will be given out nationwide for licensed Professionals. Videos. Books, Websites, Laptops, and also Advanced Training courses. Seriously dude now your trying to hard. I really dont think with your education or thought patterns you could compete with this project. I poop out a super lowbudget show 3 times a week FOR FREE that I’m sure people get more out of than you little “Movie”

Best Regards.

Go fuck yourself

Ps Brosef Kellener before you decide to get INFRONT of a camera again may I suggest

Permalink Reply by JoshXO Fighting!!! on December 9, 2010 at 12:54am

Oh yeah forgot this fucking gem
The Really Shitty Hair Truth from a fucking senior portrait specialist.
Love the yellow brassy tones there Broseph. Now I’m reeling LOLing about the “My Profession” thing.
Since when was under processed bleach at all professional?
And when typing LOL i really mean it. Some people just type it in text but when I read what you write then see the hair, I really am Laughing Out Loud. You’re the biggest joke and thank you for making my day!!

Permalink Reply by Jose Raphael on January 15, 2011 at 7:51am

Thanks’ ..”That Was Great!

Permalink Reply by Glynn Cathro on February 1, 2011 at 5:16am

I agree!

Permalink Reply by Javier VanHuss on December 9, 2010 at 1:17pm

yes, you’re right. i AM a “wannabee”. i WANT TO BE a successful business owner, and as such i was asking for some feedback/advice. YOU are the asshole who jumped on the attack from post 1. i hope you have some extra toilet paper for that new asshole Señor Flowers just ripped you.
I don’t give a fuck about your “accomplishments”. people who feel the need to list stuff like that are generally compensating for the lack of something else.
im not looking to be an example to anyone. im trying to build MY business MY way. like Sinatra, or Tony Montana, but less ethnic.
you don’t know anything about my background, my education, or my knowledge. just because i don’t wear paisley shirts or pointy shoes doesn’t mean i cant cut a circle around walking fossils like you. but hey, thanks for trying to “help” someone new to a certain side of the industry. makes you look like a real hero, and totally enforces those “accomplishments”

Permalink Reply by Gerard Scarpaci on December 9, 2010 at 1:37pm

i think the Real Hair Truth is you can’t put 8500 hairdressers together without some sparks flying!
the real hair truth.comThank you Hairbrained.me for your kind comments, may god bless you each and every day!
Best Regards
Joseph Kellner