Castillo v. Unilever United States, Inc. et al

COMPLAINT filed by Emily Castillo; Jury Demand. Filing fee $ 400, receipt number 0752-17650574.

Northern District of Illinois, ilnd-1:2020-cv-06786

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Case: 1:20-cv-06786 Document #: 1 Filed: 11/16/20 Page 1 of 49 PageID #:1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EMILY CASTILLO, on behalf of herself and all others similarly situated, CASE NO.: Plaintiff, CLASS ACTION v. JURY TRIAL DEMANDED UNILEVER UNITED STATES, INC., and CONOPCO, INC. d/b/a UNILEVER HOME & PERSONAL CARE USA, Defendants. CLASS ACTION COMPLAINT Plaintiff, Emily Castillo ("Plaintiff"), on behalf of herself and all others similarly situated, brings this class action against Defendants, Unilever United States, Inc. ("Unilever"), and Conopco, Inc. d/b/a Unilever Home & Personal Care USA ("Conopco") (collectively, "Unilever" or "Defendants"), and alleges on personal knowledge, investigation of her counsel, and on information and belief as follows: INTRODUCTION 1. This is a nationwide class action brought by Plaintiff on behalf of herself and other similarly situated consumers who purchased TRESemmé Keratin Hair Smoothing Shampoo and/or TRESemmé Keratin Smooth Color Shampoo (collectively, the "Products" or "TRESemmé Products") for personal or household use and not for resale ("Class" or "Class Members"). 2. Plaintiff purchased the Products because of Unilever's uniform false representation that the Products would smooth her hair and coat it with Keratin, a protein found naturally in hair. Undisclosed by Defendants to Plaintiff and Class Members and therefore unknown to Plaintiff and Case: 1:20-cv-06786 Document #: 1 Filed: 11/16/20 Page 2 of 49 PageID #:2 Class Members, the Products contain an ingredient or combination of ingredients that causes significant hair loss and/or scalp irritation upon proper application. At least one ingredient in the Products, DMDM hydantoin, is a formaldehyde donor known to slowly leach formaldehyde when coming into contact with water. Formaldehyde is a well-known human carcinogen that can cause cancer and other harmful reactions when absorbed into skin. DMDM hydantoin has been used a preservative in Unilever products for more than a decade; however, the use of DMDM hydantoin as a preservative is an entirely unnecessary risk because various safer natural alternatives exist. As such, the Products are rendered dangerous and unsafe for sale as over-the-counter hair smoothing shampoo products. 3. Defendants failed to properly warn consumers of the risks and dangers attendant to the use of such a strong ingredient on their hair and scalp – even well after Defendants knew or should have known of the Products' hazards. Defendants continued to conceal the dangers of the Products by failing to appropriately and fully recall the Products, by continuing to claim the Products were safe when properly applied, and by failing to warn consumers of the dangers attendant to the Products' use. 4. Defendants' uniform acts and omissions in connection with the development, marketing, sale and delivery of the Products violate the consumer protection laws of the states of residence of Plaintiff and other members of the Class, breaches Unilever's express and implied warranties to Plaintiff and the Class, and unjust enrichment by the Defendants. 5. Unilever labeled, advertised, promoted and sold the Products targeting women who wanted smooth, shiny, manageable hair with no frizz. 6. The Products are marketed in large bold font on the Products' front labels as "Keratin Smooth": 2 Case: 1:20-cv-06786 Document #: 1 Filed: 11/16/20 Page 3 of 49 PageID #:3 7. Through its labeling and an extensive marketing campaign, including through its website and online advertisements, Unilever made a number of express warranties: that the Products contain a keratin formula intended to smooth hair, add softness and shine, and prevent frizzing and tangling1; and that the Products "deeply nourish," "gently cleanse," and "repair hair." 2 8. However, the Products' formula contains an ingredient, or combination of 1 www.TRESemmé.com/us/en/collections/keratin-smooth.html (Last Accessed October 8, 2020). 2 www.TRESemmé.com/us/en/collections/keratin-smooth.html ("How it works")(Last Accessed October 8, 2020). 3 Case: 1:20-cv-06786 Document #: 1 Filed: 11/16/20 Page 4 of 49 PageID #:4 ingredients, that has caused Plaintiff and thousands of consumers to experience hair loss and/or scalp irritation. 9. At least one ingredient in the Products, DMDM hydantoin, is a formaldehyde donor known to slowly leach formaldehyde when coming into contact with water. Formaldehyde is a well-known human carcinogen that can cause cancer and other harmful reactions when absorbed into skin. DMDM hydantoin has been used a preservative in Unilever products for more than a decade; however, the use of DMDM hydantoin as a preservative is an entirely unnecessary risk because various safer natural alternatives exist. 10. DMDM hydantoin is found in the Products as stated on the Products' back labels:  Below is the ingredient list located on the back label of the TRESemmé Keratin Smooth Color Shampoo:  Below is the ingredient list located on the back label of the TRESemmé Keratin Hair Smoothing Shampoo: 4 Case: 1:20-cv-06786 Document #: 1 Filed: 11/16/20 Page 5 of 49 PageID #:5 11. In fact, for approximately a decade or longer, Unilever has known that DMDM hydantoin can cause or contribute to hair loss and scalp irritation when used as a preservative in hair products, including keratin products. Specifically, DMDM hydantoin, and other ingredients, were the subject of prior litigation initiated in 2012 against Unilever for hair loss and scalp irritation related to its Suave Professionals Keratin Infusion products. 3 In fact, the Suave Keratin product was recalled in 2012 following complaints that the products caused hair loss and scalp irritation, and were advertised as formaldehyde free, while containing DMDM hydantoin. The $10.2 million settlement in Unilever's Suave case was upheld by the Seventh Circuit Court of Appeals in 2016. 12. Despite having public knowledge since at least 2012 that DMDM hydantoin, as a formaldehyde donor, can cause or contribute to hair loss and scalp irritation, Unilever continued to proudly include this ingredient as a preservative in its products, and even goes so far as to represent to the public that DMDM hydantoin is safe for use in its hair care products. 4 13. Upon information and belief, despite Unilever's current acknowledgment that it uses DMDM hydantoin as a preservative, it has recently reformulated the Products and has removed DMDM hydantoin and replaced it with several other ingredients that serve as preservatives. 14. Although Unilever has, or should have been aware, of the high potential for toxicity or allergic reaction caused by one or more of the ingredients in the TRESemmé Products, it has failed and continues to fail to warn consumers about possible reactions, including hair loss and scalp irritation. 3 Reid, et al. v. Unilever United States, Inc., et al., C.A.N. 1:12-cv-06058 (N.D. Ill.). 4 https://www.unilever.com/brands/our-products-and-ingredients/your-ingredient-questions- answered/formaldehyde-donors.html (Last Accessed October 8, 2020). 5 Case: 1:20-cv-06786 Document #: 1 Filed: 11/16/20 Page 6 of 49 PageID #:6 15. Nowhere on the package labeling or on Unilever's websites or other marketing materials did Unilever warn Plaintiff and members of the Class that they were at risk of significant hair loss and/or scalp irritation upon proper application of the products. Even Unilever's "Formaldehyde donors" page fails to recognize any associated risk of reaction to DMDM hydantoin. Accordingly, Unilever misled and deceived the public, and placed their customers in harm's way, all for the sake of increased profits. 16. U.S. consumers reasonably expect that their hair care products will not cause significant hair loss and/or scalp irritation because of defective design and manufacturing or because of inadequate research of due diligence. In addition, U.S. consumers had no expectation that the Products would cause scalp irritation and cause their hair to fall out. 17. Further, consumers reasonably expect that if Unilever, the company primarily responsible for developing, manufacturing, marketing and distributing the Products, knew that the Products would or could cause hair loss (whether by proper application or by misapplication), Unilever would make a disclosure to consumers as soon as it determined there was a widespread problem, rather than attempting to conceal the problem. By downplaying, concealing and misrepresenting the Products and the safety and risks of their use, Unilever failed in its duty to provide consumers with adequate information, and continued even knowing of the Products' dangers to create and perpetuate a false public perception that there was little or no risk of harm from the use of its Products. Moreover, Unilever's efforts to conceal and downplay the hundreds if not thousands of complaints of Class Members who have lost their hair or endured scalp irritation, as a result of using the Products as intended, comprised a pointed attack on consumers. 18. Defendants manufacture, advertise, market, distribute and sell the TRESemmé Products throughout the United States, and in Illinois. As alleged with specificity herein, through an extensive, uniform, nationwide advertising and marketing campaign, specifically marketing 6 Case: 1:20-cv-06786 Document #: 1 Filed: 11/16/20 Page 7 of 49 PageID #:7 the Products as "smooth" keratin-based Shampoos. 19. Unilever labeled, advertised, promoted and sold the Products targeting women who wanted to safely nourish, cleanse, and repair hair in order to obtain smooth, shiny, manageable hair with no frizz. Through an extensive marketing campaign and via its website and packaging, Unilever made a number of express warranties, including that the Products were formulated to safely nourish, cleanse, and repair hair in order to obtain smooth, "frizz-less" results. 20. Unilever further represented through its website that, inter alia, its formaldehyde donors, including DMDM hydantoin, "are used in personal care products as safe and efficient preservatives."5 It further represents that "Product safety is our top priority… People trust us to provide them with products that are safe for them, their families and the environment," 6 and that its "expert scientists use state of the art methods to ensure [Unilever] use[es] ingredients at the minimum level required to be effective, without causing people to become allergic." 7 21. However, Unilever knew, but failed to disclose to Plaintiff and the Class the danger of hair loss and/or scalp irritation caused by one or more ingredients in the Products, including the formaldehyde donor ingredient DMDM hydantoin. 22. Defendants failed to properly warn consumers of the risks and dangers attendant to the use of such a strong preservative and human toxicants on their hair and scalp – even well after Defendants knew or should have known of its hazards. Defendants continued to conceal the dangers of the Products by failing to recall the Products, and otherwise claim they are safe when properly applied. 5 https://www.unilever.com/brands/our-products-and-ingredients/your-ingredient-questions- answered/formaldehyde-donors.html (Last Accessed October 8, 2020). 6 https://www.unilever.com/brands/our-products-and-ingredients/Our-approach-to-the-safety-of- products-and-ingredients/ (Last Accessed October 8, 2020). 7 https://www.unilever.com/brands/our-products-and-ingredients/ (Last Accessed October 8, 2020). 7 Case: 1:20-cv-06786 Document #: 1 Filed: 11/16/20 Page 8 of 49 PageID #:8 23. As a result of Defendants' misconduct and misrepresentations, Plaintiff and putative Class Members have suffered injury in fact, including economic damages. 24. Plaintiff brings this suit to halt the unlawful sales and marketing of the Products by Defendants and for damages she sustained as a result. Given the massive quantities of the Products sold all over the c