By Megan Stride
Law360, Chicago (October 23, 2012, 7:51 PM ET) — A California consumer hit Avon Products Inc. with a putative class action Tuesday alleging it ran a sham marketing campaign for its Anew anti-aging skin products, on the heels of the U.S. Food and Drug Administration‘s demand that Avon tone down its Anew claims.
Named plaintiff Lorena Trujillo alleges Avon has earned "handsome profits" by misleading the public with claims about its various Anew products based on formulas that purportedly boost collagen production, recreate fresh skin and fortify damaged tissue.
But the plaintiff says there are no scientifically reliable studies to support those claims and that all of Avon’s assertions about the superior benefits of its Anew products are false, deceptive and misleading. She claims the marketing has induced consumers to pay premium prices for items that cannot deliver the benefits the company promises.
"Avon used aggressive marketing to mislead consumers into believing that the Avon anti-aging products were bottled at the fountain of youth," the complaint said. "Indeed, Avon preys upon consumers who fear the effects of aging and believe there are products that can make their skin and features youthful again, and halt or turn back the inevitable hands of time."
Baron & Budd PC, the firm representing the plaintiffs, said Tuesday that it believes the suit is the first to be filed accusing Avon of deceptive advertising of the Anew anti-aging products.
As the complaint notes, those products were also the subject of a warning letter to Avon that the FDA released this month, in which the agency said Avon appeared to be making claims for Anew items that violated the Federal Food, Drug and Cosmetic Act.
Trujillo is suing on behalf of U.S. residents who have purchased Avon’s Anew Clinical Advanced Wrinkle Corrector, Anew Reversalist Night Renewal Cream, Anew Reversalist Renewal Serum and Anew Clinical Thermafirm Face Lifting Cream since Oct. 23, 2008, and is also looking to represent a subclass of California residents.
She is bringing claims for violations of the California Unfair Business Practices Act, California False Advertising Law and New York Deceptive Trade Practices Act; breach of express warranty; negligent misrepresentation; and unjust enrichment.
Avon spokeswoman Jennifer Vargas declined to comment Tuesday.
On Oct. 16, the FDA released a letter it sent to Avon saying an agency review of the company’s website found the Anew products appear to be intended for uses that cause them to be classified as drugs under the Federal FDCA.
"The claims on your website indicate that these products are intended to affect the structure or any function of the human body, rendering them drugs under the act," the letter said. "The marketing of these products with claims evidencing these intended uses violates the act."
Among the claims targeted in the FDA’s letter were Avon’s assertions that its Anew Clinical Thermafirm Face Lifting Cream is "formulated to fortify damaged tissue with new collagen" and that its Anew Clinical Advanced Wrinkle Corrector allows users to "start rebuilding collagen in just 48 hours."
The FDA asserted that the Avon products are new drugs under the statute because they are "not generally recognized among qualified experts as safe and effective" for their claimed uses, and that they therefore cannot be legally marketed in the U.S. without prior approval from the agency.
The letter told Avon to correct the alleged violations, warned that failure to do so could lead to an enforcement action and asked the company to notify the agency within 15 working days as to the specific steps it had taken to address the issue.
"At Avon, we take great pride in our products and we are committed to marketing them in compliance with all applicable laws and regulations where we do business," the company said in a statement on the FDA letter Tuesday. "We are reviewing the FDA letter and intend to work with [the agency] to resolve this matter."
The plaintiffs in Tuesday’s lawsuit are represented by Roland Tellis and Mark Pifko of Baron & Budd PC.
Counsel information for Avon was not immediately available.
The case is Lorena Trujillo v. Avon Products Inc., case number 12-cv-09084, in the U.S. District Court for the Central District of California.
–Editing by Elizabeth Bowen.