Costco and Estee Lauder were the targets of two new false advertising class actions recently filed in California federal court.
In the ad campaign for its Plantscription skincare products, Estee Lauder used images purporting to be the “before” and “after” pictures dramatizing a clinical study of the effects of its anti-aging serum on subjects aged 45 to 60. In the “before” picture, the model’s skin appears dark, with visible wrinkles; in the “after” picture, her skin appears smoother, lighter and “younger-looking.” Pointing to four different parts of the model’s face in the “after” picture, the ads claimed the effects were a result of use of the Plantscription products “In just 4 weeks – 4 signs of again visible repairs.”
But the advertisements were deceptive and misleading because the model in question never used the product and did not participate in the study, according to the complaint.
The model featured in the ad campaign is outside the target age range of the product at 35 years old, the plaintiffs said. She filed her own suit over the ads last year seeking at least $2 million for a violation of her publicity rights, arguing that she never agreed to have her image used in the advertisements.
Alleging violations of California state law, the plaintiffs requested injunctive relief to halt the advertising campaign, restitution, punitive damages, and at least $100 million in compensatory damages.
In a second suit, a putative class plaintiff alleged that Costco misleads consumers about the fat content of its Kirkland Signature Kettle Brand Potato Chips.
Although Kirkland potato chips are labeled “0 grams trans fat,” they in fact contain 13 grams of fat per 50 grams, according to the complaint. The plaintiff claimed that this level of fat content triggers FDA and state requirements to make certain nutrient content disclosures on the product label. As Costco failed to make the required disclosure, its product is mislabeled and illegally marketed and sold.
Based on the Kirkland label, plaintiff Karen Thomas had the impression that the potato chips “made only positive contributions to a diet, and did not contain any nutrients at levels that raised the risk of diet-related disease or health-related condition,” the complaint alleges.
The suit seeks damages and restitution as well as an order that Costco cease and desist selling its misbranded products and engage in corrective action.
To read the complaint in Wheeler v. Estee Lauder, click here.
To read the complaint in Thomas v. Costco, click here.
Why it matters: The suits demonstrate that false advertising class actions show no sign of slowing down, as consumers continue to target a broad range of products, from health-related claims like Costco’s “0 grams trans fat” label for its potato chips to Estee Lauder’s anti-aging claims for its line of skincare products.