Expressly True But Impliedly False (or Misleading)

Madison Reed's Ad Claims

Madison Reed markets at-home hair color products.

Madison Reed positions its products against competing hair color products that include “harsh ingredients” including ammonia, p-phenylenediamine (PPD), and parabens that can cause hair loss.

Marketing Reed's ad claims:

    *  It sells "salon quality hair color products that use ingredients that are less 'harsh' on hair health, as well as the health of the user, than traditionally-formulated hair color product".

    *  Its products were “non-damaging” and contain “no harsh ingredients.”

A consumer who suffered hair loss from Madison Reed's product filed a class action lawsuit in 2023.

Madison Reed filed a motion to dismiss.

Allegations and Arguments

The plaintiff's allegations:  

    *  Madison Reed's marketing left her with the impression that the products were "gentler, safer, and healthier than other hair dye companies she was researching."

    *  Madison Reed replaced ammonia and other harsh ingredients with replacement ingredients without warning that they may also cause adverse reactions and even hair loss.

Madison Reed's argument:

    *  Its products did not in fact, contain the enumerated chemicals.

    *  The plaintiff failed to allege that the claims were “materially misleading.”

Granular Analysis Takeaway

The Court's preliminary finding:

    *  Even if the product did not contain the enumerated chemicals, the key issue is whether a reasonable consumer would have interpreted the claims in a way that rendered them deceptive.

    *  A granular analysis was required to determine how reasonable consumers would interpret the claims (net impression).

Takeaway

    *  “Literal truth alone” was not a defense to the claims.

    *  An ad claim may be expressly true but impliedly false (or misleading).