Frye v. L’Oreal USA, Inc., 583 F. Supp. 2d 954 (N.D. Ill. 2008).
I don’t know how many of you have seen this video parody done by Weird Al Yankovic. Click here to see it.
You remember Weird Al. Back in the early days of MTV, he did Michael Jackson parodies. Any hoo, Weird Al has experienced a resurgence on You Tube. Apparently mostly among pre-teen boys. My nephew sent me this parody of Rage Against the Machine titled “I’ll Sue Ya." (see footnote)
Perhaps Don’s Frye (and no, that is not a typo) saw this video and was inspired to sue L’Oreal. Don’s sued L’Oreal claiming that its lipstick contained dangerously high quantities of lead. Problem, Don’s didn’t have any evidence that the lead in the lipstick caused her any damages.
Don’s brought suit on behalf of herself and all other L’Oreal lipstick users in Illinois Federal Court alleging a host of violations of Illinois consumer protection statutes. Really, the only mention of CAFA in this case is that Don’s obtained Federal Court jurisdiction via CAFA. But because I now have this Weird Al song stuck in my head, I am going to tell you a bit more about the case.
It appears that some group called the “Campaign for Safe Cosmetics” determined that certain shades of red L’Oreal lipstick had dangerous amounts of lead in it. The plaintiff alleged she was one of the purchasers of the L’Oreal death sticks (er, I mean lipsticks).
L’Oreal filed a 12(b)(6) motion to dismiss. The gist of L’Oreal’s motion to dismiss is that Don’s did not plead any damages caused by use of the lead laced lipsticks. Don’s said she suffered damages in the amount of the cost of the lipstick. Problem is, said the Court, Don’s did not allege that she would not have purchased lipstick, she would not have purchased a cheaper lipstick or that, I loved this one, the presence of the lead in the L’Oreal diminished the value of the L’Oreal lipstick. The Court stated, “Simply put, there is no allegation that the presence of lead in the lipstick had any observable economic consequences.”
This is a good lesson for you young attorneys. Everyone knows lead is bad. No doubt it is bad to put lead on your lips. But to sue for damages for lead in a product you must PLEAD those damages.
Don’s took one more shot and attempted to allege actual injury in the form of a personal injury claim for medical monitoring. In Illinois, to recover for medical monitoring, a plaintiff must show that medical monitoring is necessary to a reasonable degree of medical certainty. The Court found the plaintiff’s pleadings in this regard “woefully deficient.” ( The phrase “woefully deficient” is not one an attorney hopes to see in reference to his pleadings). The Court noted that Don’s did not allege how often she used the lipsticks, nor did she allege that she was a “repeated” or “regular” user. There were no facts in her pleading that could raise a claim of exposure to excessive amounts of lead sufficient to warrant medical monitoring.
Now, this will gross you out. Don’s did allege that a woman will consume 4 lbs. of lipstick in her lifetime. Yuck. The Complaint alleged that the L’Oreal lipstick contained .65 ppm of lead. After a bunch of calculations too complicated for my brain on a Friday morning, the Court came to the conclusion that the amount of lead that would be consumed using the L’Oreal lipstick over a lifetime is less than the acceptable amount of lead in candy. Double Yuck.
So, case dismissed. Ladies, and men if it applies, feel free to eat your lipstick. And Don’s and counsel, take another look at Weird Al and maybe he will give you another idea for that next big class action. Lead based lipstick does not appear to be a money winner.
Footnote: A Rage Against the Machine-inspired headbanger which takes aim at the abundance of frivolous lawsuits,"including many stylistic similarities to RATM songs such as "Bombtrack," "Killing in the Name," and "Wake Up." The riffs are all variations of the riffs in the RATM song "Bulls on Parade". Some of the lawsuits mentioned are similar to real ones. Many of the lawsuits are the fault of the person suing, not the company.