Okay! Industry! The Maybelline lawsuit story has been floating on the web for some days now and it was just a matter of getting to it. Now I am ready. So, let’s talk about it folks.
A group of women are suing Maybelline for false advertising because they say a brand of lipstick Maybelline promises last for hours, does not.
They have sued in a Manhattan Federal court for claims that they say are “misleading, inaccurate and deceptive.” The lip gloss does not last for hours but instead “wear off and fade after only a few hours of wear.”
According to them, “Maybelline overstates and misrepresent the staying power of its Super Stay products as a means to induce consumers to purchase the product.”
What do they want?
They want to turn this case into a class action i.e. find have a large group of women who are dissatisfied with the lip gloss join them in suing Maybelline. There is power in numbers, not so? The of course also want monetary damages for the alleged false advertising claim.
I recall using a lipstick that lasted for hours, way back in the days, when the color stay concept was first introduced. I can’t remember which brand it was. I just knew, after my first experience, I would never do so again. Why? It seemed enticing at the time but when I thought about it, it made no sense why I would want a chemical product that may or may not be harmful to me, in the future, on my lips for over 10hours. It really made no sense. I am still of the same opinion today. We women are already competing with so many chemicals we introduce into our bodies that we learn, much later, are cancer causing: from our hair sprays to deodorants, and the list goes on. I am not sure I want to deal with a study a decade or two down the line that may suggest harmful effects of wearing such long lasting lipsticks. So, I choose, as a practical matter, to avoid such products.
Independent of worrying about the future implications of a health issue that may or may not surface, I must say I enjoy Maybelline products, the non-color stay products, that is. I believe it was in 2009 when I was at New York Fashion Week wearing my other hat as a Journalist that I really got hooked on the brand. MAC Cosmetics had been the official makeup sponsor for Mercedes Benz New York Fashion Week for years. All of a sudden, Maybelline showed up. I walked past the Maybelline booth and did a double take. The models were wearing the sexiest red lipstick color I had ever seen. What was even more exciting was that they were models of various shades and colors, from Black to White fashion models, and they all looked VERY hot. They handed out a sample of their VERY Cherry red lipstick and I have been sold on that ever since. I continue to get lots of complements when I rock that lipstick. It’s a yum color and ladies, I suggest you check it out.
Maybelline also continues to be the official makeup sponsor at Mercedes Benz Fashion, enjoying more exposure and publicity.
Okay, enough on that. Let’s get to the legal claim of false advertising.
What is False Advertising?
When you make untrue or misleading statements in connection with the marketing and promotion of your goods and services, you are essentially engaging in false advertising.
What Law Governs?
1. Federal Trade Commission Act
2. False Advertising State Laws
3. Federal Unfair Competition Laws
4. The Lanham Act
Let’s hone in on the Federal Trade Commission Act listed above.
What does the FTC Act Say?
The gist of the relevant parts we care about are as follows:
1. When you advertise, you gotta tell the truth and it cannot be deceptive.
2. If you make claims, you gotta have the evidence to back up your claims; and
3. Your advertising cannot be unfair.
For California, here is what the Unfair Business Competition law section 17500 says: “It is unlawful for any person, firm, corporation or association, or any employee thereof with intent directly or indirectly to . . . to make or disseminate or cause to be made or disseminated from this state before the public in any state, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatever, including over the Internet, any statement, concerning that real or personal property or those services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, or for any person, firm, or corporation to so make or disseminate or cause to be so made or disseminated any such statement as part of a plan or scheme with the intent not to sell that personal property or those services, professional or otherwise, so advertised at the price stated therein, or as so advertised. Any violation of the provisions of this section is a misdemeanor punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both that imprisonment and fine. . .”
Notice California even makes it a misdemeanor crime. Finally, you have probably heard of puffery. Puffery is different from making an express claim that a lipstick will stay on for 14hours. Puffery could be, “wear Maybelline lipstick and you will glow in the dark.” No one truly believes such a statement. It is puffery.
Maybelline vehemently denies the allegation by the Plaintiffs and have sworn to fight this case vigorously. We will see how it all shakes out in this lipstick case.
Photocredit: Maybelline lip gloss promotional ad
Fashionentlaw™ is the brainchild of Uduak Oduok (Ms. Uduak), an ex-fashion model and industry veteran turned Fashion and Entertainment lawyer. The law blog discusses hot topics in pop culture arising primarily out of the fashion industry.
As a legal practitioner, Ms. Uduak has over two decades of experience counseling individuals and businesses within and outside the creative community. She has counseled designers, apparel manufacturers, models, photographers, retailers, graphic designers, musicians, public relations specialists, and athletes, among others, on diverse legal issues including business formation, licensing, trademark and copyright matters, contracts, intellectual property and contract disputes. She is also an Adjunct Professor.
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