Makeup May Fade, but Fraud Claims Hang On

     (CN) - L'Oreal and Lancome must face claims that they lied to consumers about the age-defying properties of purportedly scientifically proven anti-wrinkle products, a federal judge ruled.
     Twelve consumers sued L'Oreal USA and its luxury brands, Lancome and Lancome Luxury Products, alleging that 30 of their anti-wrinkle products "do not, and cannot, provide the results promised."
     L'Oreal cites on a decade of research to support its claims that one collection "acts biologically on the 12 key targets of aging," and that products can stimulate genes and youth proteins.
     The customers have meanwhile argued that L'Oreal's collections can neither "fortify skin to make it visibly plumper," nor refill wrinkles within an hour, as advertised.
     One collection falsely proclaims a "'decisive breakthrough in stem cells' such that within seven days skin recovers the visible signs of younger skin," the complaint states.
     The plaintiffs said L'Oreal advertised that the purportedly patented, age-defying creams resulted from "vigorous scientific research" using "in-vitro" testing.
     But such results "are based on cells in a test tube or petri dish, which means that the ingredients' ability to penetrate actual human skin cannot be assessed," the complaint states.
     Plus, L'Oreal's tests and studies allegedly relied on either biased samples or too few participants to derive statistically significant results.
     And while the company Photoshops images to give a false impression of the efficacy of its creams, it uses footnotes and asterisks to "deceptively disclaim the promised results," according to the lawsuit.
     The 26-count complaint asserts claims for false advertising under various state laws; unjust enrichment; and breach of express warranty.
     U.S. District Judge William Martini declined last week to dismiss certain claims that he found had been pleaded with sufficient particularity.
     "The plaintiffs who purchased Genefique products (Schwartz, Bauer, Murphy, Simmons, and Nino) did so based on L'Oreal's representation that Genefique can 'boost the activity of genes and stimulate the production of youth proteins,'" Martini wrote. "The plaintiffs who purchased Youth Code products (Goldrick, Gordon, and Luu) did so based on L'Oreal's representation that Youth Code can 'increase skin's power of regeneration so it regains the qualities of young skin.' The plaintiff who purchased Visionnaire (Nino) did so based on a before and after photo of a woman's face that 'purported to demonstrate the dramatic results that would be achieved from using Lancome products.' These allegations satisfy the 'what' element for purposes of Rule 9(b)." (Parentheses in original.)
     Though other plaintiffs were not so specific, and failed to "pinpoint the statements they relied on," the judge refused to dismiss the fraud claims, holding that discovery will reveal the details.
     Because "the basis of plaintiffs' claims is the same with respect to all 30 products," the court deferred the standing inquiry until the class-certification stage.
     The court agreed with L'Oreal that the plaintiffs cannot recover in unjust enrichment under New Jersey law because they made their purchases from third parties.
     The other unjust enrichment claims and breach of warranty claims survived, however.
     L'Oreal Group, the French parent of the defendants, reported more than $30.6 billion in sales in 2012.