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Class Action Takes on Alleged Benzene Contamination in Shampoo Products Offered to New Mothers

Many Georgia residents used hair relaxers and similar hair products on a daily basis. But there is a growing body of scientific evidence that suggests many of these hair products contain known carcinogens that have led to consumers developing cancer and other serious health problems. As of July 2023, there are more than 60 lawsuits pending before a federal court in Illinois raising such allegations. The named defendants include some of the most well-recognized names in consumer beauty products, such as L’Oréal, Strength of Nature, Soft Sheen/Carson, Dabur International, and Namaste Laboratories.

If you live in and around Atlanta and have reason to believe that the use of hair straighteners, hair relaxers, or shampoos have caused you to suffer a serious health problem, it is important to seek out timely legal advice regarding your options for seeking compensation. The experienced Atlanta hair product cancer lawsuit attorneys can evaluate your case and represent you in filing or joining a lawsuit.

Independent Lab Testing Reveals Presence of the Carcinogen Benzene in Dry Shampoos

To illustrate the types of hair product cancer lawsuits that have already been filed, a federal judge in Illinois recently held that a proposed class action against one manufacturer could proceed, although certain claims were dismissed. This particular lawsuit involves Pierre Fabre USA Inc., which manufactures and distributes dry shampoo in the United States under the “Klorane” brand. Pierre Fabre acquired the original manufacturer of Klorane back in 1965. Today it is marketed primarily as a “dry” shampoo for use by new mothers in hospitals. (Dry shampoos are sprayed from an aerosol can and are designed to absorb oil and grease from the user’s hair.)

Two individual plaintiffs filed a class action complaint against Pierre Fabre in December 2022. The core allegation of the complaint is that Klorane products have been “adulterated and/or contaminated with benzene, a known human carcinogen.” The complaint cited a petition filed by Valisure, an independent laboratory registered with the Drug Enforcement Administration. In October 2022, Valisure petitioned the Food and Drug Administration (FDA) to “address dangerous levels of benzene in dry shampoos” based on its own testing of a number of products.

Valisure tested 148 separate batches of dry shampoo across 34 brands. The testing found benzene concentration in several samples ranging from 0.20 to 5.72 parts per million. But according to the FDA, benzene should never be used when manufacturing cosmetic or drug products due to its toxicity. And if for some reason the use of benzene is unavoidable during the manufacturing process, its levels must be no more than 2 parts per million. The class action complaint further noted that there was no reason to use benzene at all to manufacture dry shampoo, including Pierre Fabre’s “Klorane” brand.

As far as the class action complaint’s legal arguments, the two named plaintiffs are Illinois residents. They alleged that Pierre Fabre violated the Illinois Consumer Fraud Act (IFCA), the consumer fraud laws of several other states, and breach of warranties. Pierre Fabre subsequently filed a motion to dismiss the complaint on various grounds.

Judge: Hair Product Company Can Be Sued for Alleged “Adulteration” of Shampoo

On October 27, 2023, United States District Judge Thomas M. Durkin issued an order dismissing some of the claims against Pierre Fabre. But he also gave the plaintiffs an opportunity to file an amended complaint. In doing so, he clarified the type of claims that could be brought under IFCA under the particular facts alleged in this case.

First, Durkin addressed whether the plaintiffs had legal “standing” to sue Pierre Fabre. Standing generally requires a plaintiff to allege some sort of injury or loss they suffered due to the defendant’s conduct. Here, Pierre Fabre argued there was a lack of standing largely because neither the plaintiffs nor Valisure tested “the specific bottles of dry shampoo” that the plaintiffs purchased to see if they contained benzene. Durkin said that was not necessary. The complaint alleged that benzene was detected in the majority of “Klorane” samples tested by Valisure, which could support an inference that the entire product line was contaminated.

Next, Durkin looked at the plaintiffs’ claim that Pierre Fabre violated the IFCA and similar consumer fraud laws in other states by omitting any disclosure that their dry shampoo products contained benzene. Pierre Fabre argued that federal law, specifically the Food, Drug, and Cosmetic Act, preempted any state laws with respect to the labeling of cosmetics. Durkin rejected that argument. He pointed out that the federal act governs the listing of “ingredients” used in drugs. Here, the plaintiffs explicitly argued that benzene was a “contaminant,” not an ingredient, so federal law did not expressly preempt the IFCA. That said, Durkin held the plaintiffs could not support their IFCA claim based on Pierre Fabre’s failure to mention the risk of benzene on its dry shampoo labels since there was no allegation the company knew about the contamination beforehand.

But that only speaks to the labeling, not the alleged contamination. On that point, Durkin said the plaintiffs had adequately pleaded their complaint. So they could proceed with a claim under Illinois and other state laws on the basis of Pierre Fabre allegedly manufacturing dry shampoo contaminated with benzene. And Durkin’s ruling still allowed the plaintiffs a chance to try and correct the legal defects with their claims with respect to the labeling.

Contact Stewart Miller Simmons Trial Attorneys Today

Consumer class actions are an enormously complex area of law. This is one reason it is important to work with an experienced Atlanta hair product cancer attorney. Before you ever set foot in a courthouse, you need to make sure your potential claims are fully investigated–because well-funded corporate defendants will not miss any opportunity to identify potential defects in your case and demand a judge dismiss them without the need for a trial.

So if you have developed cancer or another serious health problem after using a hair care product, call Stewart Miller Simmons Trial Attorneys today at 1 800-788-3311 or contact us online to schedule a free initial consultation. We can help confirm whether your case qualifies for legal action and advise you on what steps to take next.

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