A recent Ninth Circuit opinion raises the question of whether California’s consumer protection laws should perhaps be renamed California’s “consumer unprotection laws.”

In a case where a manufacturer replaced potentially harmful ingredients in its hair dye with “chemicals that are just as unsafe or worse” than those they replaced, the appellate court found the plaintiff had failed to state a valid cause of action because she did not allege enough facts to state a claim to relief that is “plausible on its face.’”

California plaintiffs Molly Brown and Keppie Moore and Ohio plaintiff Audrey Sheffler filed a class action suit against Madison Reed, Inc., the manufacturer of a hair dye marketed as a “Radiant Hair Color Kit” (Color Kit). The product’s label states the hair dye is “free of” a variety of potentially harmful ingredients including ammonia, resorcinol, parabens, and phthalates.” Ammonia is a colorless highly irritating gas, resorcinol is an antiseptic disinfectant, parabens are chemicals often used as preservatives in cosmetics, and phthalates are chemicals that make plastics more durable.

Madison Reed argued the label is true. The Color Kit is actually free of all the listed ingredients it claimed to be “free of.” Therefore, the court did not have to look into the matter of what replaced the former ingredients. However, the plaintiffs sued because they said the words “free of” on the front of the Color Kit “implies something material about their replacements.” To the contrary, plaintiffs claimed, the ingredients that replaced the list on the front of the Color Kits were, in fact, “less safe.” As a result, they said, the labels were deceptive.

For example, the plaintiffs’ brief said ammonia was replaced with ethanolamine, which is made from a chemical reaction with ethylene oxide, a chemical that the Environmental Protection Agency has labeled as a carcinogen. But would a reasonable consumer know that? Color Kit’s other ingredients were also replaced with potentially worse chemicals that could cause harm to the thyroid or other body parts.

Plaintiffs’ class action suit was based on three California consumer protection statutes: The Consumer Legal Remedies Act, which says that “methods of competition and unfair or deceptive practices” are unlawful; the False Advertising Law (part of California Business and Professional Code §17500), which prohibits false and deceptive advertising; and the Unfair Competition Law (California Business Code §§17200-17219), which defines unfair competition as any unlawful, unfair or fraudulent business act or practice.

Presiding Judge William Horsley Orrick or the Northern District of California dismissed plaintiffs’ case because the statements about the lack of harmful ingredients were true. None of them are in the Radiant Hair Color Kit. Plaintiffs agreed this was true, and the actual ingredients were listed on the Color Kits’ back label. Therefore, Orrick wrote, plaintiffs could not assert their claims under California law. Orrick also found the claims were barred by the statute of limitations.

Nonetheless, plaintiffs appealed to the Ninth Circuit, which affirmed Orrick’s dismissal on December 13 in a unanimous 3-0 unpublished memorandum opinion by Circuit Judges Daniel Aaron Bress, Anthony Johnstone and Senior Circuit Judge Sidney Thomas.

The reason for the affirmation was technical and did not at all mention plaintiffs’ concerns, which were stated in plaintiffs’ appellate brief. According to the brief, “The reason that Defendant’s marketing works is because, for consumers who dye their hair, the “Free of” representation has a specific meaning and indicates the Product is safer than traditional hair dye products.” They said many of the ingredients that the Color Kit was “free of” are “viewed by consumers of permanent hair color products as unsafe to human health and bad for hair.”

“Unfortunately,” the brief continued, “unbeknownst to consumers, Defendants replaced ammonia, resorcinol and PPD with chemicals that are just as unsafe as or worse than what they replaced. In other words, the purportedly safe Product is not safer and causes as much, if not more, damage to hair than the harmful ingredients that the Color Kit replaced.”

Plaintiffs’ concerns about the safety of the substituted ingredients are not addressed at all in the Ninth Circuit opinion. Rather, the court cited the Federal Rule of Civil Procedure (“Rule”) 12(b) (6) to support its decision that the district court did not err when it dismissed plaintiff’s suit. They said the dismissal was appropriate because the plaintiff “has not allege(d) enough facts to state a claim to relief that is plausible on its face.” The opinion said that under the three California consumer protection laws plaintiffs cited, they needed to “show that members of the public are likely to be deceived.”

All the court cared about was that the statement on the label regarding the ingredients in the Color Kit was true. It was in fact; the ingredients the manufacturer claimed the Color Kits were “free of” were no longer in the product. Therefore, the court said, “The statements on the label were accurate, and there were “no other words, pictures, or diagrams adorning the packaging . . . from which any inference could be drawn or on which any reasonable belief could be based.”

The accuracy, therefore, negated plaintiffs’ claims of “actionable misrepresentation.” Instead, the opinion said the “remaining claims failed because the referenced statements were either accurate or nonactionable puffery.” These included statements that said the Color Kit would make hair “Salon Gorgeous,” “Salon Quality,” and had “Ingredients with Integrity.” “These statements,” the justices wrote, “are abstract and do not suggest anything about Madison Reed’s product safety.”

As a result, the court concluded that the plaintiffs had no valid claims under California law. For now, and until the legislature requires that product substitutions are as free from potentially hazardous ingredients as the ingredients they replace, it is wise to read all hair dye labels and research their safety before purchasing any product.