The complaint for this class action makes a simple allegation: that the makers of Schwartzkopf got2b Ultra Glued Invincible Styling Gel claim that the product makes “no flakes” when in fact it does.
Two classes have been proposed for this action. The Nationwide Class is all persons or entities who bought the gel product in the US during the applicable limitations period. Alternatively, a similar New York State Class has been proposed for those who bought the product in New York.
The gel is made by Henkel of America, Inc., a subsidiary of Henkel Corporation, and sold through stores and salons as well as online.
Plaintiff Abel Duran bought the gel in Queens, one of the five boroughs of New York, and paid $7.99 for it. He bought it relying on the representations on the label that the gel produces “no flakes.” The complaint says he had seen the flakes produced by other gels and didn’t want a gel that produced them.
However, after the gel had dried on his hair, he noticed gray and white flakes that looked like dried glue. He did not have the flakes prior to applying the gel, the complaint says, and they did not look like flakes that come naturally from hair or scalp.
The complaint reproduces online reviews from other customers that show that Duran was not the only person who found that the gel produced flakes. Clearly, others have had the same experience.
The gel contains poly N-vinyl-2-pyrrolidone (PVP), a water-soluble polymer, the complaint says, which is known to produce flakes. It quotes one article about hair gels as saying, “PVP (poly N-vinyl-2-pyrrolidone) is an excellent film-former that is substantive to hair, forms clear films, and is completely water soluble. However, it absorbs water readily, which in humid weather makes it sticky or tacky to the touch, can cause frizz, and give a dull appearance to the hair. In dry weather, it can become brittle and flaky.”
It quotes another article as concurring: “However, PVP can be very brittle and prone to flaking in cold dry weather.” A third also agrees: “A further drawback of PVP homopolymer was its tendency to become brittle and flaky in dry weather.”
The complaint claims that the midbranding “violates New York State laws within the same scope as the Federal Food Drug & Cosmetic Act (FDCA).” It cites consumer protection laws for all fifty states and the District of Columbia that it claims are also violated by the mislabeling.
The complaint alleges violations of laws against deceptive and unfair trade practices, false advertising, and fraudulent misrepresentation, among other things.