A putative class action lawsuit was filed early last week against Church & Dwight, Proctor & Gamble, Revlon, Dial Corporation, and Henkel Corporation, for allegedly misleading consumers by labeling their respective deodorants as “unscented,” when, per the complaint, they products all have “a noticeable and unmistakable scent.” The plaintiff seeks to represent a nationwide class of consumers duped by the “unscented” claim.
Fogarty alleges consumers are unable to detect the scent of the products due, at least in part, to the defendants’ packaging including “foil and plastic barriers attached to the top of the product with adhesive or with form fitting plastic caps…not intended to be opened prior to purchase.” As a result, consumers could not “smell test” the products before purchasing them. The plaintiff describes the scents of the various products as: “a clean, fresh, alcohol, powdery scent”; “an unmistakable citrus scent”; a “clean, fresh, alcohol, musky scent”; a “clean, fresh, musky, and powdery scent”; and a “clean, fresh, acoholic, antiseptic scent.”
This is not the first lawsuit claiming a personal care product fails “the smell test.” Beginning in late 2013, personal care companies began receiving demand letters pertaining to “unscented” and “fragrance free” claims on a variety of products. In 2014, a putative class action was filed in California against Wal-Mart for its Equate brand “fragrance free” and “unscented” products.
As the FDA recognizes,
“Even some products labeled “unscented” may contain fragrance ingredients. This is because the manufacturer may add just enough fragrance to mask the unpleasant smell of other ingredients, without giving the product a noticeable scent.”
As a result, many soaps, creams, shampoos, and deodorants, are labeled as “unscented” when the product has no discernible smell but often means the product contains masking agents (including fragrances) to cover up the ingredients’ odors (which can be unpleasant). Others are labeled as “fragrance-free” when they include no added “fragrance.” Under Federal law, a fragrance added to a cosmetic need only be listed as “Fragrance,” because “fragrances” are complex mixtures of many different natural and synthetic chemical ingredients, and they are the kinds of cosmetic components that are most likely to be “trade secrets” (with ingredient lists often longer than the cosmetic they are in).
But what does “unscented,” “fragrance-free,” and “hypo-allergenic” really mean? Unfortunately, just as there is no regulatory definition of “natural” for cosmetics, there is no regulatory definition or standard for “unscented,” “fragrance-free,” or “hypoallergenic” (at least not in the U.S.). The resulting ambiguity is where the problems arise.
As we have seen with “natural” and “organic” claims, the plaintiffs’ lawyers are attempting to seize on the lack of defined standards, arguing consumers interpret them to mean the product contains no fragrance whatsoever or have absolutely no scent. They then point to the ingredient statements, and identifying any ingredient with a known scent (e.g., hordeum distichon (barley) extract”, “phellodendron amurense bark extract”, “santalum album (sandalwood) extract,”), as well as the masking fragrances (e.g., “Parfum (fragrance)”). The plaintiffs claim the presence of these ingredients, even if used only for masking, renders the products misleading.
Not surprisingly, the actions demand removal of the term “unscented,” refund consumers’ money, and attorneys’ fees. But, like many of the “all natural” cases, plaintiffs face several significant challenges in these “unscented” suits. For example, in the Fogarty case, the plaintiffs’ proposed definition for unscented, apparently based only on an online dictionary, conflicts with the industry’s common usage of the term. In other cases, the plaintiffs’ claims appear to conflate “unscented” with “fragrance free,” which is also inconsistent with industry usage. As a result, the plaintiffs’ will likely have difficulty showing the reasonable consumer would have been misled.
It will be interesting to see how the Fogarty plaintiff in particular proves that “fresh,” “clean,” “alcoholic,” or “antiseptic” are what the reasonable consumer believes to be distinct unmistakable scents. No doubt, the plaintiff will need to come forward with consumer survey evidence, which is expensive, and often futile.
Take away…Although personal care products companies have several strong defenses to these “unscented” class actions, they will be expensive to defend. Thus, as we have seen with “all natural” and “organic” cosmetic actions, companies may wish to reevaluate their use of the terms “unscented,” “fragrance-free,” or “hypoallergenic” to determine whether it is worth the risk associated with this litigation trend. Companies may also want to consider providing clear definitions on product webpages explaining what the terms mean to the company so to diminish the likelihood that a reasonable consumer would be misled.