Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Ill.: Cosmetics purchaser could not state claim for false advertising of wrinkle cream, (Jul 29, 2013)

By Jody Coultas, J.D.

A cosmetics purchaser failed to state an Illinois Consumer Fraud and Deceptive Practices Act (CFA) claim against Estee Lauder Corporation Inc. for allegedly deceptively advertising an anti-wrinkle cream, the federal district court in Chicago has held (Greifenstein v. Estee Lauder Corp., July 26, 2013, Chang, E.).

Estee Lauder advertised its Origins Plantscription Anti-aging Serum in magazines, on the Internet, and on in-store displays that the serum had “88% of the visible wrinkle-reducing power of a prescription,” was “clinically proven to help visibly repair 4 major signs of aging” “in just 4 weeks,” repaired “vertical fret lines” and “stubborn furrows,” and “help[ed] rebuild natural collagen and elastin fibers,” making skin “clinically firmer, smoother, and more lifted-looking.” The purchaser alleged that the claims were false, disproved by competent clinical evidence, and based on flawed company-sponsored testing.

The purchaser was unable to identify with particularity how the advertising was false, according to the court. An advertisement may be fraudulent if the ad lacks substantiation, but only when the claim implies that support exists for the claim when there is none. Although the purchaser was dissatisfied with the testing methods and Estee Lauder’s failure to disclose the study’s methodology and funding of the study itself, the mere existence of the study defeated the argument that the wrinkle-repair claims lacked substantiation.

There was also insufficient evidence to support the purchaser’s allegations that clinical evidence rebutted the claims that the serum repaired wrinkles, according to the court. A review by the National Advertising Division (NAD) resulted in a recommendation that Estee Lauder discontinue claims suggesting that Plantscription serum provides comparable benefits to prescription anti-wrinkle products, and also recommended that it discontinue the use of terms such as “repair” because they “communicate a far broader performance benefit than the evidence in the record supports.” However, the NAD study did not even address one of the main wrinkle-repair claims at issue and, thus, could not support the purchaser’s argument that the claims were false. Also, the NAD’s findings were overturned by the National Advertising Review Board (NARB). The NARB found that the Estee Lauder provided a reasonable basis for its “visibly repair” advertising language.

The court also held that the purchaser’s claim did not plead with sufficient particularity that the “88%” wrinkle-repair claim was false. The NARB found that test subjects using Plantscription serum did reduce facial lines and wrinkles by an amount that was around 88% of the wrinkle reduction achieved by subjects using a prescription anti-wrinkle product, but the improvement did not last. However, the purchaser’s claim did not allege that the serum stopped working after four weeks, or even that it stopped working as well after four weeks. The basis of the claim was that the serum did not work at all. Therefore, the NARB study did not support the purchaser’s claims.

The case is No. 12-cv-09235.

Attorneys: Joseph J. Siprut (Siprut PC) for Donna Greifsenstein. Edward Michael Crane (Skadden Arps Slate Meagher & Flom, LLP CH) for Estee Lauder Corp.

Companies: Estee Lauder Corp.

Cases: Advertising StateUnfairTradePractices IllinoisNews