First comes regulatory action, then comes the class action. Just weeks after Avon and ColorTyme received letters from the Food and Drug Administration and the FTC, both companies face lawsuits with allegations similar to those made by the federal authorities.
Avon recently received a letter from the FDA warning the company about the marketing of its anti-aging products, which the agency said were being marketed as drugs, not cosmetics.
Echoing the agency, a California plaintiff says that Avon’s claims for its Anew skin care line – including products like the Clinical Advanced Wrinkle Corrector and the Reversalist Renewal Serum – were false and deceptive. “Avon used aggressive marketing to mislead consumers into believing that the Avon Anti-Aging products were bottled at the fountain of youth,” according to the complaint. “Indeed, Avon preys upon consumers who fear the effects of aging and believe there are products that can make their skin and features youthful again, and halt or turn back the inevitable hands of time.”
According to plaintiff Lorena Trujillo, claims that the product line can “boost collagen production,” “recreate fresh skin,” and “fortify damaged tissue” violate California consumer protection and false advertising laws and New York’s deceptive trade practices statute.
Trujillo, a California resident, says she purchased Avon’s Anew Reversalist Night Renewal Cream at least six times in the last two years because she believed that if she used the product, it would “reactivate [her] skin’s repair process to recreate fresh skin & help dramatically reverse visible wrinkles.”
“Avon promises specific superior results over lesser priced products that offer similar ingredients and efficacy by cloaking the Avon Anti-Aging Products with the indicia of scientific reliability and making claims of ‘exhaustive research, testing & review,’ which has led to ‘unprecedented discover[ies] by Avon scientists.’ Such deceptive conduct and practices mean that Avon’s marketing is not just puffery, but is instead deceptive and fraudulent,” Trujillo contends.
The suit seeks compensatory damages, injunctive relief halting Avon from making the allegedly false marketing statements, and an order that the company engage in corrective advertising.
In a second suit, a plaintiff filed a complaint against ColorTyme Inc., a furniture retailer that recently settled with the FTC over allegations that the company sold computers with software that allowed the company to spy on consumers.
Leslie Arrington leased a laptop computer from a ColorTyme store in Clarkston, Washington, in March. Nothing in the lease agreement mentioned the software that allowed the rental company “to remotely and surreptitiously access, monitor, intercept, and/or transmit electronic communications and images, including, but not limited to, images of monitors or screens, keystrokes, as well as images captured by the computers’ respective cameras of whatever person(s) was sitting in front of the computer, and whatever activity was occurring at the time the webcam was capturing the photographs,” according to the complaint.
Accordingly, the defendant violated the Electronic Communications Privacy Act, which entitles a nationwide class of plaintiffs to compensatory damages, the plaintiff contends, as well as statutory damages under the Act (the greater of $10,000 or $100 a day for each day of violation).
Further, because the “private information of plaintiff surreptitiously obtained as referenced herein, was viewed, posted, ogled, shared, available and displayed unnecessarily and illegally by defendants,” the class is also entitled to punitive damages, according to the complaint.
To read the complaint in Trujillo v. Avon Products, click here.
To read the complaint in Arrington v. ColorTyme, click here.
Why it matters: Both suits come quickly on the heels of administrative action. The FDA sent its letter to Avon on Oct. 5, while the FTC announced its settlement with ColorTyme and six other companies in late September. Companies dealing with regulatory authorities should be prepared to face a class action lawsuit when news of the action becomes public.