his past October, a products liability claim was filed against L’Oréal in the Northern District of Illinois, alleging that the hair relaxers sold by the company are linked to cancer. The complaint alleges that the relaxers are primarily marketed and used by black women, and that the chemicals involved are linked with uterine cancer.
Count one of the complaint is for failure to warn, a strict liability action. It claims that the company knew, or should have known, that the chemicals included in the product were linked with a significant increase in the chance of developing cancer. It further alleges that the products were offered in an unreasonably defective condition, and should not have been offered to the public.
Count two is also a strict liability claim, which alleges a design and/or manufacturing defect. The complaint goes into excruciating detail about the chemical components involved in the production of the hair relaxer products. The inherent danger, according to the complaint, warrants strict liability against the company. Count three alleges the same, it also adds that the company failed to use reasonable alternatives in the product’s development.
Count four alleges negligent failure to warn, a products liability claim. This standard is different than count one, which is a strict liability action. Here, the complaint alleges that the company did not take reasonable precautions to warn consumers about the risks.
Count five alleges negligence, based on the design and/or manufacturing defect. One interesting component of this count is that the products are “nonessential,” therefore, the risk of harm was unreasonable as ample alternatives exist.
Count six alleges negligence as well, based on negligence and/or gross negligence. This count includes elements including failure to test, failure to instruct, failure to remove, and similar types of actions which the complaint alleges, a reasonable prudent company would have done.
Count seven alleges negligence, based on negligent misrepresentation. The complaint alleges that the language indicating that the products had been tested to be safe was incorrect, and that liability should arise from the negligent misrepresentation.
Count eight alleges a violation of the Missouri Merchandising Practices Act. The plaintiff in the suit is a resident of Missouri. In part, the complaint states that it is a violation for the company to claim that a product has characteristics that it does not actually have.
Count nine alleges a violation of the Illinois Consumer Fraud and Deceptive Trade Practices Act. This Act, at least applied here, acts very similarly to the Missouri state based claim.
Count ten alleges fraud. this is primarily based on the statements, which claim that the hair products had been tested and were safe. It also alleges that the safety of a product is implicitly stated by and through its offering.
Count eleven alleges fraudulent concealment. This allegation is primarily based on the fact that the company allegedly failed to convey material facts about the product in offering its product to the company. It claims that studies linked some of the chemicals to cancer since as early as 2015.
Count twelve alleges a breach of express warranty. Through its marketing and packaging, the complaint alleges, the company offered an express warranty about the safety of its products.
Count thirteen alleges breach of implied warranty. Similar to above, but this is primarily based upon the fact that the product was being offered, regardless of any specific statements made or not made on packaging, marketing or otherwise.
Count fourteen alleges negligent failure to recall. This stems from the fact that the company knew or should have known of the risks, failed to take any action, and therefore, should have recalled the product from the shelves.
Count fifteen is medical monitoring. A less well-known action than the above, this count claims that the company had a duty to exercise reasonable care to avoid causing harm, this may include through testing or other sorts of actions.
The complaint is far reaching and makes serious claims about the products offered by L’Oréal. Fifteen counts under both state, federal, and common law presents a serious concern for the company. This is not the only complaint of this nature that has been filed.
OTHER LAWSUITS FILED AGAINST L’OREAL SINCE CHICAGO FILING IN THE FALL
In December alone, eight complaint were filed against L’Oréal for Product Liability in federal courts across the country. Five of these have been filed in the Northern District of Illinois, one in the Southern District of New York, one in the Southern District of Ohio, and one in the Western District of Missouri. While each is somewhat unique in terms of facts and there is some variation as to specific counts, the crux of most are quite similar.
Interestingly, it does not appear that any of the lawsuits filed yet have been class action complaints. While I may have missed a class action filing, it surely appears ripe for joinder, class action, or some sort of consolidation, at least for the Northern District of Illinois cases.
Read the University of Illinois Chicago School of Law, Law Review blog post on the October lawsuit and press conference.
Read the October complaint filed in the Northern District of Illinois here.