Antitrust Law Daily Wrap Up, ADVERTISING—E.D.N.Y.: Estee Lauder “brushes off” misrepresentation claims over skin products, (Aug 27, 2014)

By Greg Hammond, J.D.

The Estee Lauder Companies, Inc., Estee Laboratories, LLC, and Estee Lauder Inc. have successfully evaded claims that the companies engaged in deceptive acts or practices when advertising their Advanced Night Repair (ANR) products. In granting the cosmetic companies’ motion to dismiss, the federal district court in New York City determined that the consumer failed to state a claim upon which relief could be granted (Tomasino v. The Estee Lauder Companies Inc., August 26, 2014, Korman, E.).

Background. Donna Tomasino purchased two ANR products in 2010. Although it is unknown whether she actually used the cosmetic products, she filed a class action against Estee Lauder, alleging that she relied on the company’s advertised ANR “efficacy claims” when making her decision to purchase the items. Specifically, she alleged that Estee Lauder misrepresented that the ANR products can: “repair DNA,” “support the natural synchronization of skin’s repair and protection processes,” “repair the appearance of past damage,” “address the visible damaging effects of environmental assaults…before they become permanent,” “prevent future damage,” and “reduce lines and wrinkles by 68%.” Tomasino asserts that “[i]n reality, the ANR Products do not and cannot live up to the efficacy claims made by Estee Lauder because none of their ingredients can provide the promised result.”

Tomasino contends—in part—that Estee Lauder violated sections 349 and 350 of the New York General Business Law, and partially seeks injunctive relief. Estee Lauder moved to dismiss the amended complaint.

False advertising. Under the New York General Business Law (GBL), it is unlawful to engage in “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.” To state a claim under the GBL, Tomasino was required to allege: (1) the challenged act or practice was consumer-oriented; (2) that it was misleading in a material way; and (3) she suffered injury as a result of the deceptive act. In addition, Tomasino was required to demonstrate that she actually relied on the allegedly false advertisements.

The court concluded that Tomasino failed to plead with “plausibility” that any of Estee Lauder’s claims were materially misleading, as she: (1) failed to allege the specific ingredients that lacked the ability to improve skin appearance; (2) failed to specify which allegedly misleading claims pertained to what ANR products; (3) failed to provide any scientific evidence to discredit Estee Lauder’s statements about its ANR products; and (4) never alleged that she actually used either of the ANR products she purchased. Consequently, the court granted the cosmetics companies’ motion to dismiss, but granted Tomasino leave to replead her false advertising claims.

Injunctive relief. In support of their motion to dismiss the consumer’s claims for injunctive relief, Estee Lauder argued that Tomasino lacked standing. The court agreed, noting that she failed to demonstrate any future injury. Specifically, the court determined that because Tomasino established she is unlikely to purchase ANR products again in the future, she also was unlikely to be harmed in the future. In addition, the court noted that, “the fact that unknowing class members might purchase ANR products based on the defendants’ allegedly unlawful advertising does not establish standing.” Consequently, Tomasino’s claims for injunctive relief were dismissed.

The case number is 13-CV-4692 (ERK) (JMA).

Attorneys: Caroline Firth Bartlett (Carella Byrne Cecchi Olstein Brody & Agnello, PC) for Donna Tomasino. Kenneth A. Plevan (Skadden, Arps, Slate, Meagher & Flom LLP) for The Estee Lauder Companies Inc., Estee Laboratories, LLC, and Estee Lauder Inc.

Companies: The Estee Lauder Companies Inc.; Estee Laboratories, LLC; Estee Lauder Inc.

Cases: Advertising StateUnfairTradePractices NewYorkNews