A federal court in Kentucky has denied the defendants’ motions to dismiss in a putative class action alleging that Unilever U.S., Inc.’s Suave® “Professionals Keratin Infusion 30 Day Smoothing Kit” is falsely labeled as a safe, smoothing hair care product because it, in fact, caused consumers to lose their hair and burned their scalps. Naiser v. Unilever U.S., Inc., No. 13-395 (U.S. Dist. Ct., W.D. Ky., Louisville Div., order entered September 30, 2013). The product was recalled in May 2012, but the company allegedly continued to advise consumers that it was safe and was recalled “due to consumer misunderstanding of the product’s appropriate use and application.”

The court found that the plaintiffs’ breach of warranty, consumer protection law violation, negligence, strict liability, and unjust enrichment claims were sufficiently pleaded, based in large part on the ruling of an Illinois federal court considering similar claims. Reid v. Unilever U.S., Inc., 2013 WL 4050194 (N.D. Ill. Aug. 7, 2013). Unilever contended that the label statements about smoothing were nonactionable puffery and that other label statements about varying product effects as well as label warnings made it clear to consumers that the product was a hair straightener with the “same chemicals used in perming to alter hair shape and texture.” The court disagreed, saying it could not make this determination as a matter of law at this stage of the proceedings. The company also argued that a lack of privity doomed the claims, but the court agreed with the plaintiffs that Kentucky law allowed claims against manufacturers who sell their products through retailers where their “alleged written, express warranties were clearly intended for the product’s consumers.”  

While the court agreed with the defendants that Kentucky law requires a plaintiff to prove that a safer, feasible alternative design was available to the manufacturer when it made the product, it found that this element could be inferred from the plaintiffs’ allegations that the defendants “advertised that the hair product contained no formaldehyde, despite the fact that it contained a formaldehyde-releaser. The Court finds that from this allegation, it can be inferred that a safer alternative design exists: namely, a product containing no formaldehyde or formaldehyde-releaser.” The court further allowed the unjust enrichment claim to proceed as an alternative cause of action.  

In a related development, California plaintiffs have reportedly filed similar litigation, seeking class certification, cancellation of purportedly unconscionable releases, and damages for negligence, gross negligence, breach of warranty, deceptive advertising, unjust enrichment, and violations of the Magnuson- Moss Warranty Act and business and consumer laws. Wells v. Unilever U.S., Inc., No. 13-4749 (U.S. Dist. Ct., N.D. Cal., San Francisco Div., filed October 11, 2013). One of the named plaintiffs alleges that her hair started “melting” as soon as she applied the product. According to a news source, the complaint states that the company failed to disclose that “the treatment contains an ingredient or combination of ingredients that causes significant hair loss upon proper application. The active ingredient in the treatment, thioglycolic acid, including its salts and esters, is the same active ingredient that is used in hair depilatories and some hair perming solutions.” See Courthouse News Service, October 15, 2013.