Vogue International sells a line of hair care products under the name “Proganix” that, according to the complaint for this class action, promise to “repair” hair. In fact, as shown in the image of the products in the complaint, the word “repair” is the single largest word on the label. But according to the complaint, once hair is damaged through heat, brushing, or other daily wear and tear, it is not even possible truly to repair it.
The Nationwide Class for this action is all consumers who made retail purchases of the products in the US during the applicable period of limitations. In the alternative, the complaint proposes a New York Class, consisting of all consumers who made retail purchases of the products in New York state during the applicable period of limitations.
These are the products at issue:
According to the complaint, Vogue International has undertaken an extensive advertising campaign that claims that the products will repair split ends and damaged hair—a claim that the complaint calls “false and deceptive.”
Hair, the complaint points out, is dead matter. A quotation from the website Hairmomentum.com says that hair grows from follicles in the scalp that are alive and so capable of producing hair, but the hair itself is dead keratin and protein fibers. “Once the fibers are broken, they cannot fix themselves, and there is no ‘ointment’ available like for skin to help them recover.”
Then why does hair look better for awhile when treated with some hair care products? The website goes on to say that many products “have been specially formulated with polymers … designed to fill the gaps in the hair temporarily. Imagine a cracked surface and putting in some putty just to fill those gaps. The end result: a smooth surface, that feels repaired and that looks nicer than it was before.” However, the effect is only temporary, because the hair is not really repaired; the complaint quotes another expert who says that “products improve the appearance but they will wash out and you are back to the original problem.”
The complaint claims that the products imply that vitamin E and Ceramide 3 are what repairs the hair, but that these substances have no ability to do so. It quotes another expert as saying that Ceramide creates a barrier around the hair to reduce porosity and prevent moisture and protein loss, but does not repair the hair to its former state. Nor, the complaint says, does vitamin E.
The complaint makes a further claim: “[I]f Defendant’s repairing claims were true, the Product could only be lawfully marketed as an FDA-approved drug" because they would be drugs under the US Code, that is, “intended to affect the structure or any function of the body of man…”
The complaint therefore claims violations of New York’s business laws as well as common law fraud.