Product BottlesConsumer products companies selling personal care products have started receiving demand letters and class action complaints alleging false advertising because of the use of the term “unscented.”   Is this the next class action wave to hit the consumer products industry?

Many personal care products, such as soaps, creams and deodorants, are labeled as “unscented” because the product has no discernible smell.  In the cosmetics industry, the term “unscented” often means that the product contains masking agents (including some fragrances) that cover unpleasant odors from the ingredients, thus making the product neutral or unscented.

But like the term “all natural,” “unscented” has no official definition.  And this is where the problem arises.
Continue Reading Is ‘Unscented’ the New ‘All Natural’?

Law books, gavel and scales Berger v. Home Depot USA, Inc., No. 11-55592 (9th Cir. Feb. 3, 2014) This is a great decision for retailers and consumer products companies. The court affirmed a decision denying class certification, recognizing that variability in consumer experience when entering into a retail transaction makes a case inappropriate for class treatment. In Berger, plaintiff challenged the defendant’s “damage waiver surcharge,” which allows the customer to avoid liability if a tool is damaged during the period of rental. Plaintiff claimed the waiver was deceptive because it was automatically added to all transactions and the defendant (allegedly) failed to disclose that it was optional. The trial court denied class certification and the Ninth Circuit affirmed.
Continue Reading Variability in Consumer Experience Dooms Class Action

After being hit with a class action, one question consumer products companies often face is:  should we modify our business practices in response to the suit?  Sometimes it makes sense.  Changing the challenged practice can, in some cases, help defeat class certification and may help limit liability.  Others would argue that changing business practices in response to a lawsuit is an admission of culpability that could negatively impact how the judge and jury will view the case.

A recent decision provides an additional reason consumer products companies will want to carefully evaluate whether to change business practices after being sued in a class action.  Judgment

In Henderson v. J.M. Smucker Co., CV 10-4524-GHK VBKX, 2013 WL 3146774 (C.D. Cal. June 19, 2013), the plaintiff sued claiming that the defendant’s labels included misleading “health and wellness” claims on products that actually contained unhealthy amounts of high fructose corn syrup and trans fat.  The court dismissed the case because the plaintiff had filed for bankruptcy and the trustee had settled her individual claim.  But the plaintiff’s lawyers still moved for attorney’s fees under a “catalyst theory,” seeking more than $3 million on the ground that the defendant had changed its business practices in response to the suit (by removing the high fructose corn syrup and changing certain labels).
Continue Reading Cautionary Tale – Modify Business Practices and on the Hook for Catalyst Fees