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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`
`
`CASE NO.:
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`CLASS ACTION
`
`JURY TRIAL DEMANDED
`
`ROBYN LIPETZ and SHANNON
`KEENER, on behalf of themselves and all
`others similarly situated,
`
`
`Plaintiffs,
`
`
`v.
`
`UNILEVER UNITED STATES, INC., and
`CONOPCO, INC. d/b/a UNILEVER
`HOME & PERSONAL CARE USA,
`
`Defendants.
`
`
`CLASS ACTION COMPLAINT
`
`Plaintiffs, Robyn Lipetz and Shannon Keener (“Plaintiffs”), on behalf of themselves and all
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`others similarly situated, brings this class action against Defendants, Unilever United States, Inc.
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`(“Unilever”), and Conopco, Inc. d/b/a Unilever Home & Personal Care USA (“Conopco”)
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`(collectively, “Unilever” or “Defendants”), and alleges on personal knowledge, investigation of their
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`counsel, and on information and belief as follows:
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`
`
`INTRODUCTION
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`1.
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`This is a nationwide class action brought by Plaintiffs on behalf of themselves and
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`other similarly situated consumers who purchased TRESemmé Keratin Hair Smoothing Shampoo
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`and/or TRESemmé Keratin Smooth Color Shampoo (collectively,
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`the “Products” or
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`“TRESemmé Products”) for personal or household use and not for resale (“Class” or “Class
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`Members”).
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`2.
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`Plaintiffs purchased
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`the Products because of Unilever’s uniform false
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`representation that the Products would smooth their hair and coat it with Keratin, a protein found
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`naturally in hair. Undisclosed by Defendants to Plaintiffs and Class Members and therefore
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`unknown to Plaintiffs and Class Members, the Products contain an ingredient or combination of
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`ingredients that causes significant hair loss and/or scalp irritation upon proper application. At least
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`one ingredient in the Products, DMDM hydantoin, is a formaldehyde donor known to slowly leach
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`formaldehyde when coming into contact with water. Formaldehyde is a well-known human
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`carcinogen that can cause cancer and other harmful reactions when absorbed into skin. DMDM
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`hydantoin has been used as a preservative in Unilever products for more than a decade; however,
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`the use of DMDM hydantoin as a preservative is an entirely unnecessary risk because various safer
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`natural alternatives exist. As such, the Products are rendered dangerous and unsafe for sale as over-
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`the-counter hair smoothing shampoo products.
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`3.
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`Defendants failed to properly warn consumers of the risks and dangers attendant to
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`the use of such a strong ingredient on their hair and scalp – even well after Defendants knew or
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`should have known of the Products’ hazards. Defendants continued to conceal the dangers of the
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`Products by failing to appropriately and fully recall the Products, by continuing to claim the
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`Products were safe when properly applied, and by failing to warn consumers of the dangers
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`attendant to the Products’ use.
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`4.
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`Defendants’ uniform acts and omissions in connection with the development,
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`marketing, sale and delivery of the Products violate the consumer protection laws of the states of
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`residence of Plaintiffs and other members of the Class, breaches Unilever’s express and implied
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`warranties to Plaintiffs and the Class, and unjust enrichment by the Defendants.
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`5.
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`Unilever labeled, advertised, promoted and sold the Products targeting women who
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`wanted smooth, shiny, manageable hair with no frizz.
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`2
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`6.
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`The Products are marketed in large bold font on the Products’ front labels as
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`“Keratin Smooth”:
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`7.
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`Through its labeling and an extensive marketing campaign, including through its
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`website and online advertisements, Unilever made a number of express warranties: that the
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`Products contain a keratin formula intended to smooth hair, add softness and shine, and prevent
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`frizzing and tangling1; and that the Products “deeply nourish,” “gently cleanse,” and “repair hair.”2
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`1 www.TRESemmé.com/us/en/collections/keratin-smooth.html (Last Accessed October 8, 2020).
`2 www.TRESemmé.com/us/en/collections/keratin-smooth.html (“How it works”)(Last Accessed
`October 8, 2020).
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`3
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`8.
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`However, the Products’ formula contains an ingredient, or combination of
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`ingredients, that has caused Plaintiffs and thousands of consumers to experience hair loss and/or
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`scalp irritation.
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`9.
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`At least one ingredient in the Products, DMDM hydantoin, is a formaldehyde donor
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`known to slowly leach formaldehyde when coming into contact with water. Formaldehyde is a
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`well-known human carcinogen that can cause cancer and other harmful reactions when absorbed
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`into skin. DMDM hydantoin has been used a preservative in Unilever products for more than a
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`decade; however, the use of DMDM hydantoin as a preservative is an entirely unnecessary risk
`
`because various safer natural alternatives exist.
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`10.
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`DMDM hydantoin is found in the Products as stated on the Products’ back labels:
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` Below is the ingredient list located on the back label of the TRESemmé
`Keratin Smooth Color Shampoo:
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` Below is the ingredient list located on the back label of the TRESemmé
`Keratin Hair Smoothing Shampoo:
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`4
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`In fact, for approximately a decade or longer, Unilever has known that DMDM
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`11.
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`hydantoin can cause or contribute to hair loss and scalp irritation when used as a preservative in
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`hair products, including keratin products. Specifically, DMDM hydantoin, and other ingredients,
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`were the subject of prior litigation initiated in 2012 against Unilever for hair loss and scalp
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`irritation related to its Suave Professionals Keratin Infusion products.3 In fact, the Suave Keratin
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`product was recalled in 2012 following complaints that the products caused hair loss and scalp
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`irritation, and were advertised as formaldehyde free, while containing DMDM hydantoin. The
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`$10.2 million settlement in Unilever’s Suave case was upheld by the Seventh Circuit Court of
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`Appeals in 2016.
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`12.
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`Despite having public knowledge since at least 2012 that DMDM hydantoin, as a
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`formaldehyde donor, can cause or contribute to hair loss and scalp irritation, Unilever continued
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`to proudly include this ingredient as a preservative in its products, and even goes so far as to
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`represent to the public that DMDM hydantoin is safe for use in its hair care products.4
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`13.
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`Upon information and belief, despite Unilever’s current acknowledgment that it
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`3 Reid, et al. v. Unilever United States, Inc., et al., C.A.N. 1:12-cv-06058 (N.D. Ill.).
`4 https://www.unilever.com/brands/our-products-and-ingredients/your-ingredient-questions-
`answered/formaldehyde-donors.html (Last Accessed October 8, 2020).
`5
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`uses DMDM hydantoin as a preservative, it has recently reformulated the Products and has
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`removed DMDM hydantoin and replaced it with several other ingredients that serve as
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`preservatives.
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`14.
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`Although Unilever has, or should have been aware, of the high potential for toxicity
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`or allergic reaction caused by one or more of the ingredients in the TRESemmé Products, it has
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`failed and continues to fail to warn consumers about possible reactions, including hair loss and
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`scalp irritation.
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`15.
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`Nowhere on the package labeling or on Unilever’s websites or other marketing
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`materials did Unilever warn Plaintiffs and members of the Class that they were at risk of significant
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`hair loss and/or scalp irritation upon proper application of the products. Even Unilever’s
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`“Formaldehyde donors” page fails to recognize any associated risk of reaction to DMDM
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`hydantoin. Accordingly, Unilever misled and deceived the public, and placed their customers in
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`harm’s way, all for the sake of increased profits.
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`16.
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`U.S. consumers reasonably expect that their hair care products will not cause
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`significant hair loss and/or scalp irritation because of defective design and manufacturing or
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`because of inadequate research of due diligence. In addition, U.S. consumers had no expectation
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`that the Products would cause scalp irritation and cause their hair to fall out.
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`17.
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`Further, consumers reasonably expect that if Unilever, the company primarily
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`responsible for developing, manufacturing, marketing and distributing the Products, knew that the
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`Products would or could cause hair loss (whether by proper application or by misapplication),
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`Unilever would make a disclosure to consumers as soon as it determined there was a widespread
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`problem, rather than attempting to conceal the problem. By downplaying, concealing and
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`misrepresenting the Products and the safety and risks of their use, Unilever failed in its duty to
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`6
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`provide consumers with adequate information, and continued even knowing of the Products’
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`dangers to create and perpetuate a false public perception that there was little or no risk of harm
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`from the use of its Products. Moreover, Unilever’s efforts to conceal and downplay the hundreds
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`if not thousands of complaints of Class Members who have lost their hair or endured scalp
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`irritation, as a result of using the Products as intended, comprised a pointed attack on consumers.
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`18.
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`Defendants manufacture, advertise, market, distribute and sell the TRESemmé
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`Products throughout the United States, and in Pennsylvania. As alleged with specificity herein,
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`through an extensive, uniform, nationwide advertising and marketing campaign, specifically
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`marketing the Products as “smooth” keratin-based Shampoos.
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`19.
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`Unilever labeled, advertised, promoted and sold the Products targeting women who
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`wanted to safely nourish, cleanse, and repair hair in order to obtain smooth, shiny, manageable
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`hair with no frizz. Through an extensive marketing campaign and via its website and packaging,
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`Unilever made a number of express warranties, including that the Products were formulated to
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`safely nourish, cleanse, and repair hair in order to obtain smooth, “frizz-less” results.
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`20.
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`Unilever further represented through its website that, inter alia, its formaldehyde
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`donors, including DMDM hydantoin, “are used in personal care products as safe and efficient
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`preservatives.”5 It further represents that “Product safety is our top priority… People trust us to
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`provide them with products that are safe for them, their families and the environment,”6 and that
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`its “expert scientists use state of the art methods to ensure [Unilever] use[es] ingredients at the
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`minimum level required to be effective, without causing people to become allergic.”7
`
`
`5 https://www.unilever.com/brands/our-products-and-ingredients/your-ingredient-questions-
`answered/formaldehyde-donors.html (Last Accessed October 8, 2020).
`6 https://www.unilever.com/brands/our-products-and-ingredients/Our-approach-to-the-safety-of-
`products-and-ingredients/ (Last Accessed October 8, 2020).
`7 https://www.unilever.com/brands/our-products-and-ingredients/ (Last Accessed October 8, 2020).
`7
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`21.
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`However, Unilever knew, but failed to disclose to Plaintiffs and the Class the danger
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`of hair loss and/or scalp irritation caused by one or more ingredients in the Products, including the
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`formaldehyde donor ingredient DMDM hydantoin.
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`22.
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`Defendants failed to properly warn consumers of the risks and dangers attendant to
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`the use of such a strong preservative and human toxicants on their hair and scalp – even well after
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`Defendants knew or should have known of its hazards. Defendants continued to conceal the
`
`dangers of the Products by failing to recall the Products, and otherwise claim they are safe when
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`properly applied.
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`23.
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`As a result of Defendants’ misconduct and misrepresentations, Plaintiffs and
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`putative Class Members have suffered injury in fact, including economic damages.
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`24.
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`Plaintiffs bring this suit to halt the unlawful sales and marketing of the Products by
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`Defendants and for damages she sustained as a result. Given the massive quantities of the Products
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`sold all over the country, this class action is the proper vehicle for addressing Defendants’
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`misconduct and for attaining needed relief for those affected.
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`PARTIES
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`25.
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`Plaintiff Robyn Lipetz is and was at all times relevant to this matter a resident of the
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`state of Pennsylvania in Montgomery County.
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`26.
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`Plaintiff Shannon Keener is and was at all times relevant to this matter a resident
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`of the state of Pennsylvania and of the city and county of Philadelphia.
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`27.
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`Defendant Unilever is a subsidiary of the dual-listed company consisting of
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`Unilever N.V. in Rotterdam, Netherlands and Unilever PLC in London, United Kingdom.
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`Unilever, which includes the Suave brand, is a Delaware corporation with its principal place of
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`business located at 700 Sylvan Avenue, Englewood Cliffs, New Jersey 07632. Unilever
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`manufactured, marketed, designed, promoted and/or distributed the Products.
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`8
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`28.
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`Defendant Conopco is a New York corporation with its principal place of business
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`located at 700 Sylvan Avenue, Englewood Cliffs, New Jersey 07632. Upon information and belief,
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`Conopco is responsible for the distribution of the manufactured Products to retailers. At all times
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`relevant hereto, Conopco knew or should have known that the Products would be sold in the United
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`States.
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`JURISDICTION AND VENUE
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`29.
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`This Court has personal jurisdiction over Defendants in this matter. The acts and
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`omissions giving rise to this action occurred in the state of Pennsylvania. Defendants have been
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`afforded due process because they have, at all times relevant to this matter, individually or through
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`their agents, subsidiaries, officers and/or representatives, operated, conducted, engaged in and
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`carried on a business venture in this state and/or maintained an office or agency in this state, and/or
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`marketed, advertised, distributed and/or sold products, committed a statutory violation within this
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`state related to the allegations made herein, and caused injuries to Plaintiffs and putative Class
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`Members, which arose out of the acts and omissions that occurred in the state of Pennsylvania,
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`during the relevant time period, at which time Defendants were engaged in business activities in
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`the state of Pennsylvania.
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`30.
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`This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C.
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`§ 1332 of the Class Action Fairness Act of 2005 because: (i) there are 100 or more putative Class
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`Members, (ii) the aggregate amount in controversy exceeds $5,000,000, exclusive of interest and
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`costs, and (iii) there is minimal diversity because at least one Plaintiffs and Defendants are citizens
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`of different states. This Court has supplemental jurisdiction over Plaintiffs’ state law claims
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`pursuant to 28 U.S.C. § 1367.
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`31.
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`Pursuant to 28 U.S.C. § 1391(a), venue is proper because a substantial part of the
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`events giving rise to the claims asserted occurred in this District. Venue is also proper pursuant to
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`9
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`28 U.S.C. § 1391(c) because Defendants conduct substantial business in this District, have
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`sufficient minimum contacts with this District, and otherwise purposely avail themselves of the
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`markets in this District, through the promotion, sale, and marketing of the Products in this District.
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`FACTS COMMON TO ALL CLASS MEMBERS
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`A. Unilever’s Business.
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`32.
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`In 1930, Unilever was formed from the merger of two competitors, Margarine
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`Union and Lever Brothers Limited, who were in the business of household goods.8
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`33.
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`Given the founding companies long marketing and trade histories, Unilever boasts
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`that its group has been “pioneers, innovators and future-makers for over 120 years,”9 beginning
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`largely in part with the launch of the first branded soap.10
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`34.
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`Currently, Unilever’s business consists of:11
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`a.
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`b.
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`c.
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`d.
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`400+ Unilever brands used worldwide;
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`2.5 billion users of the products daily;
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`190 countries where brands are sold; and
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`€52 billion turnover in 2019.
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`35.
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`Unilever’s brands include numerous well-known companies in Beauty and Personal
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`Care, Foods and Refreshment, Home Care, and Water Purifiers. In addition to TRESemmé,
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`Unilever’s brands include Suave, St. Ives, Dove, Clear, Pond’s Q-tips, and Simple.
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`36.
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`In 2010, Unilever acquired US-based Alberto Culver Company for US $3.7 billion
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`in cash. The Alberto Culver acquisition included many large beauty brands, including TRESemmé.
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`
`8 https://www.unilever.com/Images/the-formation-of-unilever_tcm244-520314_en.pdf (Last
`Accessed October 21, 2020).
`9 https://www.unilever.com/about/who-we-are/about-Unilever/ (Last Accessed October 8, 2020).
`10 https//www.unilever.com/about/who-we-are/our-history/#timeline+2D+515781+open (Last
`Accessed October 8, 2020).
`11 https://www.unilever.com/about/who-we-are/about-Unilever/ (Last Accessed October 8, 2020).
`10
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`At the time of the announcement, Unilever claimed that the “acquisition makes Unilever the
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`world’s leading company in hair conditioning, the second largest in shampoo and the third largest
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`in styling…”12
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`37.
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`Unilever represents itself and its brands to be a global “ambassador for [its] high
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`ethical standards.”13
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`38.
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`Unilever sells and distributes TRESemmé in more than a dozen countries, including
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`the US, and represents that “TRESemmé is a haircare brand offering salon-quality products for
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`men and women. It has its origins in hair salons, dating back over 60 years, and now has a range
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`of hair-styling products for use at home.”14
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`39.
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`As part of its TRESemmé brand, Unilever sells the keratin Products at issue here.
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`B. DMDM Hydantoin.
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`40.
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`Keratin is a type of protein found in hair and nails, and is added to hair products to
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`straighten and strengthen hair, as well as reduce frizz.
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`41.
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`As protein is food for microbes, keratin hair products would spoil and have an
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`abbreviated shelf life without added preservatives to extend the life of the product.
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`42.
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`There are numerous preservatives that are used in cosmetics and hair products,
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`including formaldehyde donors; many of which have been linked to the development of allergies,
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`dermatitis, hair loss, and even cancer.
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`43.
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`Specifically, formaldehyde donors are preservatives that are “added to water-
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`containing cosmetics (which includes personal care products/toiletries) to prevent the growth of
`
`
`12 https.//www.unilever.com/news/press-releases/2010/10-09-27-Unilever-to-acquire-Alberto-
`Culvert.html. (Last Accessed October 21, 2020).
`13 www.unilever.com/about/who-we-are/our-values-and-principles/business-integrity/ (Last
`Accessed October 21, 2020).
`14 https://www.unilever.com/brands/?category=408114&brand=412548-410037 (Last Accessed
`October 21, 2020).
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`11
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`micro-organisms that may enter during manufacture or during their usage.”15
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`44.
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`Despite having intimate knowledge of the risks of using formaldehyde donor
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`preservatives, Defendants continue to use formaldehyde donors, DMDM hydantoin (also known
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`as DMDM-h) and sodium hydroxyl, in its products.16 Until recently, DMDM hydantoin was used
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`as a preservative in the Products at issue.
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`45.
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`“DMDM hydantoin (dimethylodimethyl hydantoin) is a formaldehyde donor used
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`as a preservative in cosmetic products at concentrations up to 1%.”17 In other words, it is a
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`formaldehyde-releasing preservative (“FRP”). used to lengthen the shelf life of personal care
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`products, including hair products.
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`46.
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`“An important source of human skin contact with formaldehyde is the use of
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`cosmetics containing formaldehyde-releasers as preservatives.”18
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`47.
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`In personal care products, such as shampoo, “formaldehyde can be added directly,
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`or more often, it can be released from preservatives such as… DMDM hydantoin.” Specifically,
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`the formaldehyde donor will “release small amounts of formaldehyde over time.”19
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`48.
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`“In 1984, DMDM hydantoin ranked 9th in the list of the most frequently used
`
`
`15 de Groot AC, White IR, Flyvholm MA, Lensen G, Coenraads PJ. Formaldehyde-releasers in
`cosmetics: relationship to formaldehyde contact allergy. Part 1. Characterization, frequency and
`relevance of sensitization, and frequency of use in cosmetics. Contact Dermatitis. 2010 Jan;62(1):2-
`17. doi: 10.1111/j.1600-0536.2009.01615.x. PMID: 20136875.
`16 https://www.unilever.com/brands/Our-products-and-ingredients/Your-ingredient-questions-
`answered/Formaldehyde-donors.html (Last Accessed October 26, 2020).
`17 “Patch test reactivity to DMDM hydantoin, Relationship to formaldehyde allergy.” By Anton C.
`DeGroot, Theodoor Van Joost, Jan D. Bos, Harrie L.M. Van Der Meeren, and J. Willem Weyland
`(Contact Dermatitis, 1988, 18:197-201).
`18 de Groot AC, White IR, Flyvholm MA, Lensen G, Coenraads PJ. Formaldehyde-releasers in
`cosmetics: relationship to formaldehyde contact allergy. Part 1. Characterization, frequency and
`relevance of sensitization, and frequency of use in cosmetics. Contact Dermatitis. 2010 Jan;62(1):2-
`17. doi: 10.1111/j.1600-0536.2009.01615.x. PMID: 20136875.
`19 http://www.safecosmetics.org/get-the-facts/chemicals-of-concern/formaldehyde/ (Last Accessed
`October 21, 2020).
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`12
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`cosmetic preservatives in the USA.”20 By 1987, DMDM hydantoin was included in approximately
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`115 product formulas filed with the FDA, most frequently in shampoos.21
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`49.
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`“DMDMH was the 21st most common allergen in the 2005-2006 NACDG standard
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`series. DMDMH is a preservative that contains 0.5% to 2% free formaldehyde and over 17%
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`combined formaldehyde.”22
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`50.
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`For many decades, since the 1970’s, if not earlier, studies and patch tests were being
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`performed to determine human reactivity to DMDM hydantoin,23 including specifically the
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`“relationship between contact allergy to formaldehyde,” including “test reactions to DMDM
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`hydantoin.”24
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`51.
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`One study performed in 1987 specifically examined “whether the presence of
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`DMDM hydantoin in cosmetics may cause adverse effects in patients pre-sensitized to
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`formaldehyde.”25 The conclusion even more than twenty years ago was that “aqueous solutions of
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`DMDM hydantoin, in concentrations comparable to those used in cosmetic products, contain
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`enough free formaldehyde to cause dermatitis…,” and that despite earlier conclusions that DMDM
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`hydantoin is a safe cosmetic ingredient, “data suggest that an increase in the use of this preservative
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`may also increase the risk of cosmetic dermatitis in patients allergic to formaldehyde.”26 The
`
`
`20 “Patch test reactivity to DMDM hydantoin, Relationship to formaldehyde allergy.” By Anton C.
`DeGroot, Theodoor Van Joost, Jan D. Bos, Harrie L.M. Van Der Meeren, and J. Willem Weyland
`(Contact Dermatitis, 1988, 18:197-201).
`21 Id.
`22 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2958195/ (citing Rietschel RL, Fowler JF., Jr
`. Fisher's Contact Dermatitis. 5th ed. Philadelphia: Lippincott Williams & Wilkins; 2001).
`23 Tudela E, MacPherson C, Maibach HI. Long-term trend in patch test reactions: a 32-year
`statistical overview (1970-2002), part II. Cutan Ocul Toxicol. 2008;27(3):187-202. doi:
`10.1080/15569520802143436. PMID: 18988088.
`24 “Patch test reactivity to DMDM hydantoin, Relationship to formaldehyde allergy.” By Anton C.
`DeGroot, Theodoor Van Joost, Jan D. Bos, Harrie L.M. Van Der Meeren, and J. Willem Weyland
`(Contact Dermatitis, 1988, 18:197-201).
`25 Id.
`26 Id.
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`13
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`authors further suggest that cosmetic products with FRPs should have warnings that the products
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`“’contain formaldehyde’… whether present as free formaldehyde or bound by a donor.”27
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`52.
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`Several more recent studies, including a 2015 study “determined that longer storage
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`time and higher temperature increase the amount of formaldehyde released from FRPs and could
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`ultimately lead to more severe health concerns.”28
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`53.
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`In other words, “reactions that generated formaldehyde occur silently as the
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`products sit on shelves in stores or bathroom cabinets.”29
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`54.
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`Formaldehyde is a known human carcinogen and is recognized as such by the
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`United States National Toxicology Program and the International Agency for Research on
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`Cancer.30
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`55.
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`In 2009, prior to the sale of the Products, “a review of the literature on occupational
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`exposures and formaldehyde shows a link between formaldehyde and leukemia.”31
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`56. With specific regard to FRPs, like DMDM hydantoin, “the formaldehyde released
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`from FRPs has been linked to cancer, but there is little evidence that FRPs directly cause cancer.
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`However, a mixture of the FRP bromopol and amines, which form nitrosamines, has been found
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`to penetrate skin and cause cancer.”32
`
`
`
`27 Id.
`28 http://www.safecosmetics.org/get-the-facts/chemicals-of-concern/formaldehyde/ (Last Accessed
`October 21, 2020)(citing Lv, C., Hou, J., Xie, W., & Cheng, H. (2015). Investigation on
`formaldehyde release from preservatives in cosmetics. International journal of cosmetic science.).
`29 https://www.ewg.org/research/exposing-cosmetics-cover-up#formaldehyde (Last Accessed
`October 21, 2020).
`30 http://www.safecosmetics.org/get-the-facts/chemicals-of-concern/formaldehyde/ (Last Accessed
`October 21, 2020)(citing International Agency for Research on Cancer. “IARC classifies
`formaldehyde as carcinogenic to humans.” Press release. June 15, 2004. Accessed January 9,
`2009.).
`31 http://www.safecosmetics.org/get-the-facts/chemicals-of-concern/formaldehyde/ (Last Accessed
`October 21, 2020)( Zhang et al 2009. Meta-analysis of formaldehyde and hematologic cancers in
`humans. Mutation Research 681: 150-168).
`32 http://www.safecosmetics.org/get-the-facts/chemicals-of-concern/formaldehyde/ (Last Accessed
`14
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`57.
`
`Further, a study in 2010 concluded that although “[i]t has been long accepted that
`
`formaldehyde-releaser sensitization is attributable to released formaldehyde. However, clinical
`
`studies show the existence of patients allergic to formaldehyde-releasers but not to formaldehyde
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`itself.”33 That same study found DMDM hydantoin to be “reactive per se.”
`
`58.
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`Consequently, it is unsurprising that DMDM hydantoin is considered by the U.S.
`
`Food & Drug Administration as one of the top allergens “that cause the most allergic reactions
`
`from the use of cosmetic products.”34
`
`59.
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`Specifically, DMDM hydantoin can “trigger the immune system to release chemical
`
`substances such as antibodies,” resulting in reactions such as itchiness, red rashes on the skin, or
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`more extreme reactions.35
`
`60.
`
`Further, as a person becomes more exposed to an irritant over time, including
`
`DMDM hydantoin, the likelihood and severity of the reaction increase. This is called irritant
`
`contact dermatitis (“ICD”), which “can occur in any person if the amount and duration of irritant
`
`exposure are sufficient to cause direct epidermal keratinocyte damage.”36
`
`61.
`
`Likewise, the irritation of the scalp, including dermatitis, has been linked to hair
`
`brittleness and hair loss. Specifically,
`
`[A number of observations have found that premature hair loss may be caused by the
`poor scalp health associated with either dandruff and seborrheic dermatitis, or
`psoriasis, indicating that the effect on the preemergent hair fiber may alter the
`
`
`October 21, 2020)(citing to http://www.cosmeticsinfo.org/nitrosamines. Accessed September 23,
`2015).
`33 Kireche M, Gimenez-Arnau E, Lepoittevin JP. Preservatives in cosmetics: reactivity of allergenic
`formaldehyde-releasers towards amino acids through breakdown products other than formaldehyde.
`Contact Dermatitis. 2010 Oct;63(4):192-202. doi: 10.1111/j.1600-0536.2010.01770.x. Epub 2010
`Aug 20. PMID: 20731691.
`34 https://www.fda.gov/cosmetics-ingredients/allergens-cosmetics (Last Accessed October 21,
`2020).
`35 https://www.fda.gov/cosmetics-ingredients/allergens-cosmetics (Last Accessed October 21,
`2020).
`36 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2958195/
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`anchoring force of the fiber with the follicle, as evidenced by an increased proportion
`both of catagen and telogen, and of dysplastic anagen hairs (anagen hairs devoid of
`hair root sheaths) in the trichogram (hair pluck).37
`
`
`62.
`
`In 2012, beauty product manufacturer Johnson & Johnson announced that it would
`
`“remove a host of potentially harmful chemicals, like formaldehyde, from its line of consumer
`
`products by the end of 2015.”38 [Emphasis Added].
`
`63.
`
`Like many other beauty manufacturers, Unilever has been using DMDM hydantoin
`
`as a preservative in its products since at least 2011;39 however, unlike many manufacturers moving
`
`away from toxic ingredients, Unilever continues to use this formaldehyde donor today, specifically
`
`representing:
`
`We use preservatives to keep home and personal care products in good condition:
`without them, they could be spoiled by bacteria, yeasts and molds. We choose our
`preservative ingredients carefully, making sure they are safe and effective for people
`who use our products.40
`
`
`64.
`
`Notably, despite proudly continuing to use FRPs in its products, Unilever
`
`specifically notes that they are not used in baby care products.41
`
`65.
`
`As Unilever is aware, there is a litany of alternative preservatives that can be used
`
`in shampoos and cosmetics that do not release known human carcinogens and are non-synthetic,
`
`including:
`
`a. Glyoxylic acid (or derivatives thereof);
`
`
`37 Trueb, Ralph M., Henry, Jim P., Davis, Mike G., and Schwartz, Jim R., Scalp Condition Impacts
`Hair Growth and Retention via Oxidative Stress, Int J Trichology. 2018 Nov-Dec; 10(6): 262–270,
`doi: 10.4103/ijt.ijt_57_18.
`38 https://www.nytimes.com/2012/08/16/business/johnson-johnson-to-remove-formaldehyde-from-
`products.html
`39 Reid, et al. v. Unilever United States, Inc., et al., 1:12-cv-06058 (N.D. Ill.), Dkt. No. 60.
`40 https://www.unilever.com/brands/Our-products-and-ingredients/Your-ingredient-questions-
`answered/index.html (Last Accessed October 21, 2020).
`41 https://www.unilever.com/brands/Our-products-and-ingredients/Your-ingredient-questions-
`answered/Formaldehyde-donors.html (Last Accessed October 26, 2020).
`16
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`b. Potassium sorbate and sorbic acid;
`
`c. Citric acid and its salts;
`
`d. Rosemary oil extract;
`
`e. Neem oil extract;
`
`f. Lavender oil;
`
`g. Grapefruit seed extract;
`
`h. Vinegars; and
`
`i. Others.
`
`66.
`
`In addition to these alternatives, Unilever also could have used lower levels of
`
`DMDM hydantoin; however, the risk of development and exacerbation of sensitivity or allergic
`
`reaction would still exist through repeated and prolonged use.
`
`67.
`
`Upon information and belief, Unilever has recently begun to use alternative
`
`preservatives in the Products; however, authorized retailers continue list DMDM hydantoin as an
`
`ingredient on their websites.
`
`C. Unilever’s Knowledge of DMDM Hydantoin Causing Hair Loss, Rashes, and Scalp
`Irritation.
`
`
`68.
`
`On August 1, 2012, a lawsuit was filed against Unilever related to its Suave®
`
`Keratin Infusion 30-day Treatment. In part, the lawsuit involved the allegations that,
`
`despite the express representation that the Treatment contains no Formaldehyde, the
`Treatment does contain DMDM Hydantoin, a chemical that is known as a
`“Formaldehyde-releaser.” See http://www.safecosmetics.org/article.php?id=599.
`Formaldehyde releasers are sometimes used in cosmetics in place of formaldehyde
`and release small amounts of Formaldehyde over time. Formaldehyde is a known
`human carcinogen.42
`
`
`69.
`
`Like the TRESemmé Products at issue here, the Suave product was causing “hair
`
`
`42 Reid, et al. v. Unilever United States, Inc., et al., 1:12-cv-06058 (N.D. Ill.), Dkt. No. 1, ¶ 23.
`17
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`loss upon proper application,”43 as well as scalp irritation and related conditions.
`
`70.
`
`Like the TRESemmé Products at issue here, Unilever failed to warn consumers that
`
`use of the Suave products could cause the scalp reactions and hair loss being reported by
`
`consumers.
`
`71.
`
`Accordingly, notwithstanding Unilever has been in the business of manufacturing
`
`cosmetics and hair products for nearly 100 years and the decades long studies on reactivity to
`
`DMDM hydantoin, at a minimum Unilever was on notice since the Suave lawsuit filed in 2012 that
`
`its products containing DMDM hydantoin were cause scalp irritation and hair loss.
`
`D. For Years, Consumers Have Voiced Their Complaints About the Products.
`
`72.
`
`Since at least 2013, Unilever became aware through consumer complaints that its
`
`TRESemmé Keratin Products were causing scalp irritation and hair loss.
`
`73.
`
`A sample of complaints posted on Amazon.com detail scalp reactivity and hair loss
`
`follows:
`
` Star rating unknown. BEWARE!
`o Reviewed in the United States on July 28, 2013
`o “I tried this shampoo f