Consumer products companies selling personal care products have started receiving demand letters and class action complaints alleging false advertising because of the use of the term “unscented.” Is this the next class action wave to hit the consumer products industry?
Many personal care products, such as soaps, creams and deodorants, are labeled as “unscented” because the product has no discernible smell. In the cosmetics industry, the term “unscented” often means that the product contains masking agents (including some fragrances) that cover unpleasant odors from the ingredients, thus making the product neutral or unscented.
But like the term “all natural,” “unscented” has no official definition. And this is where the problem arises.
Plaintiffs’ lawyers are attempting to seize on an ostensible ambiguity in the term “unscented,” arguing that consumers interpret it to mean that the product contains no fragrance whatsoever. They then point to the ingredient disclosures for these products, which are required to disclose that the product includes “fragrance” (even if only used as a masking agent) and assert that the product is mislabeled. The letters and complaints demand that the manufacturer remove the term “unscented” and refund consumers’ money. Not surprisingly, they also demand attorneys’ fees.
Like many of the “all natural” cases, plaintiffs appear to face several significant hurdles in this recent wave of “unscented” litigation:
- Plaintiffs’ proposed definition of “unscented” – i.e., that it means the product contains no fragrance – conflicts with common dictionary definitions, as well as industry definitions, of “unscented.”
- Plaintiffs’ claims read “unscented” as if it means “fragrance free,” which is a distinct term with its own meaning.
- Plaintiffs’ strained definition of the term “unscented” will make it difficult to demonstrate that reasonable consumers would be misled and makes any attempt at class certification an uphill battle.
- To support their claims, plaintiffs will likely need to come forward with survey evidence to support their proposed definition of “unscented,” which is an expensive, and likely futile, exercise.
- Plaintiffs will need to find a way to deal with consumers’ common practice of reviewing ingredient labels and/or “smell testing” products in stores before deciding to buy.
- Plaintiffs’ demand that companies return the entire purchase price ignores basic damages and restitution principles and would result in an unjustified windfall for consumers who used the product.
The bottom line is that consumer products companies have several strong defenses to this new wave of “unscented” class actions. That said, the cases will be expensive to defend. These companies may wish to reevaluate their use of the term “unscented” to determine whether it is worth the risk associated with this new litigation trend.