According to the lawsuit, filed by named plaintiff Ashlei McBride of New York City, the J&J subsidiary Vogue, claims its Progranix hair products can repair damaged hair yet they contain no ingredients capable of doing so.
The plaintiffs assert that it’s not possible to fix hair once it has been damaged by heat, daily brushing or other actions because it’s mostly keratin and not alive.
“While the products might create the temporary illusion that the consumer’s hair has been repaired, this is indeed an illusion because nothing in the products can mend damaged keratin proteins,” the complaint states. “A reasonable consumer is deceived by defendant’s ‘repair’ misrepresentation because the notion that hair can be repaired is already a widespread misconception. Accordingly, reasonable consumers are likely to believe a company claiming that its products can repair hair.”
According to the plaintiff, she bought one of the Proganix products named in the complaint for $12.96 from a Target store in New York City after reading the hair repair statements on its label. McBride alleges that had she been aware that the product could not actually do what it claimed to do, she wouldn’t have purchased it or she would paid less for it.
The lawsuit quotes Joanna Vargas of Joanna Vargas Salons, who states that “One of the most common misconceptions about hair is that you can repair it, and bring back that shine and strength. Hair treatments only appear to repair the damage as they coat the hair shaft, usually with a conditioning agent, making it smooth and shiny.”
Further, the lawsuit contends that even if Vogue could successfully argue that its products do repair hair, it would be simultaneously arguing that it’s illegally marketing a drug as a cosmetic, because the Food, Drug and Cosmetic Act defines cosmetics as anything that changes a body part’s appearance and drugs as anything intended to affect the structure or function of a human body. Cosmetics that change the structure of the skin are both drugs and cosmetics.
The plaintiff seeks to represent a nationwide class of all people who purchased Vogue’s “repair” products during the unspecified “applicable limitations period,” or alternatively, a class of anyone who bought them in New York. She is seeking awarded damages and a court order barring Vogue from claiming its products repair damaged hair.
The plaintiff is represented by C.K. Lee and Anne Seelig of Lee Litigation Group PLLC. The case is Ashlei McBride v. Vogue International LLC, case number 1:17-cv-07594, in the U.S. District Court for the Southern District of New York.