The latest in a series of consumer suits against personal-care marketers over ad claims in California, it couldn't come at a worse time for L'Oreal, which already is girding to defend its fast-growing Fructis from a new-product and new-brand onslaught set to begin later this month from its biggest competitors -- Unilever and Procter & Gamble Co.
Personal-care ad claims frequently have been subject of disputes between competitors in court or before the National Advertising Division of the Better Business Bureau. But the Fructis suit is the latest sign that trial lawyers and consumers are getting in on the action, at least in California.
Last week, a Los Angeles Superior Court judge consolidated nine individual lawsuits against five major sunscreen marketers in which plaintiffs charged the products don't protect against sun damage and aren't waterproof as advertised.
Jason Hartley, the lawyer representing plaintiffs in the Fructis lawsuit, said he'd also filed a lawsuit against P&G over similar strengthening claims for some Pantene products in January. That case represented only one individual seeking an injunction to stop P&G's ads, he said, but was removed at P&G's request to the U.S. District Court for the Southern District of California. If that case isn't returned to California courts, he said he'll seek to make the Pantene suit a class action as well.
Spokespeople for L'Oreal didn't return calls for comment by press time and a spokeswoman for P&G couldn't be reached for comment by press time.
Citizens can use Lanham Act
Like the sunscreen suits, the Fructis lawsuit filed June 5 in San Diego Superior Court isn't a personal-injury suit, but rather a false-advertising suit filed under the same Lanham Act and unfair-competition statutes that competitors typically cite in ad-claim litigation against one another.
The two named plaintiffs, San Diego residents Shana Hackett and Melissa Burton, said in the suit that they bought Fructis products in 2005 and 2006 after seeing ads showing they would produce a strengthening effect "perceptible to the average consumer."
"After using the product(s) for some time as directed, plaintiffs realized that there was no perceptible strengthening effect," according to the complaint.
Mr. Hartley is seeking to represent a class of all women in California who bought Fructis products based on what the complaint said are false claims they make hair stronger or smoother.
Publicis Groupe's Publicis Worldwide, New York, handles Fructis. WPP Group's Grey Global Group handles Pantene.
Defendants in many false advertising cases can defend themselves by contending their claims amount to non-specific "puffery," Mr. Hartley said. "In this case, Garnier has just hammered into consumers' skulls that Garnier increases hair strength five times," he said, or three times in the case of dandruff shampoos, establishing a much more specific claim against which he said the puffery defense won't work.
Not only did his clients not notice their hair was any stronger, but laboratory tests proved that it wasn't, Mr. Hartley said. "The laws of physics apparently prevent it," he said.
Pantene ads, he said, have made similarly specific claims that aren't substantiated by test results. "Not every Pantene product makes those claims," he said. "Every Garnier product does."
Unilever and P&G
The Fructis lawsuit comes as Unilever is preparing to launch Sunsilk and P&G is preparing to restage its Herbal Essences lineup, with both initiatives said by industry executives and consultants to be aimed mainly at the same young, multiethnic consumer segments as Fructis. Both launches are expected to hit stores starting this month.
The L'Oreal brand, launched in 2003, had sales of more than $190 million in shampoo, conditioners and styling aids in the 52 weeks ended April 16, continuing to grow by 20% or more in all its categories and becoming the No. 2 brand in conditioners by dollar sales, according to Information Resources Inc.