Ius Omnibus v Estée Lauder (Clinique)
Case Status:
Ongoing
Ius submitted on 25 October 2022, at the Lisbon District Court, a popular action aimed at defending Portuguese consumers injured by illegal practices of Estée Lauder (owner of the Clinique brand) and restore legality.
For several years Estée Lauder / Clinique has marketed cosmetic products of the “Redness” line, advertising that they contain probiotics, which it says are responsible for various beneficial effects for the skin. Independent laboratory tests carried out at the request of Ius concluded that these products do not have probiotics. Estée Lauder / Clinique is thus in breach of the Advertising Code, the Unfair Commercial Practices Law and the Legal Regime of Cosmetics and Body Hygiene Products.
In case of success, the action will lead, inter alia, to Estée Lauder refraining from advertising the existence of probiotics in the products at issue, rectifying the consequent misinformation (including a “recall” of the products to replace the labels) and compensating the consumers harmed.
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Case Details
What is the object of this action?
It is a popular action for the defense of diffuse and/or collective consumer protection interests and the individual homogeneous interests of consumers, filed by Ius.
It is a claim to defend consumer rights, brought under articles 52(3) and 60(3) of the Constitution of the Portuguese Republic, articles 2, 3, 12 and 14 of Popular Action Law (Law no. 83/95), and Articles 31 and 546(2) of the Code of Civil Procedure, for commercial practices violating articles 10(1), 11(1) and 12 of the Advertising Code, Articles 4, 6(b), 7(1)(b) and/or (g) and/or 9 of the Civil Procedure Code. (1), 11(1) and 12 of the Advertising Code, of Articles 4, 6(b), 7(1)(b) and/or (g) and/or 9(1)(a) and (b) and/or 5(1) of the Unfair Commercial Practices Law and also of the provisions of Article 11(1) of the Legal Regime of Cosmetics and Body Hygiene Products.
Estée Lauder's behaviours in their broader context
This case concerns the production, commercialization, distribution and advertising of certain cosmetic products with the information that they contain ‘probiotics’, presenting this characteristic enhancing the products and responsible for the beneficial effects attributed to them. Independent laboratory tests have concluded that these products do not contain ‘probiotics’, and Estée Lauder is maliciously offering consumers products that do not have the characteristics they claim they have, profiting from this unlawful practice.
Who is represented in this action?
All consumers resident in Portugal who purchased cosmetic products of the ‘Redness’ cosmetics line, directly or indirectly, in physical shops or through online sales platforms, are represented in this popular action.
Consumers do not have to do anything to be represented and to be entitled to compensation if the action is successful (they only have to claim their compensation at that moment).
Any consumer who does not wish to be represented in this action may exercise the right to opt-out, communicating this intention to the Court. Consumers may also decide to intervene in the process in support of Ius Omnibus, within a period to be fixed by the Court.
What is Ius Omnibus seeking?
Ius is asking the Court to:
a) Declare the infringement, still ongoing, through a single and continuous practice, of the identified interests, causing damage directly to consumers who purchased cosmetic products of the Redness line in Portugal;
b) Order Estée Lauder to put an end to the unlawful conduct at issue, refraining from disclosing information or advertising which presents the Redness products as having probiotics when they do not;
c) Order Estée Lauder to carry out a ‘recall’ of these products to replace the labels with truthful information, as well as information in the Portuguese language;
d) Order that the consumers represented be compensated for the damages they suffered as a result of the practice in question.
How does the popular action and the compensation of consumers work?
The mass consumer compensation mechanism used here, provided for in the Portuguese rules of class action, has never been tested in practice until the very last step. However, according to the law, the following will happen if the court finds in favour of Ius Omnibus:
i) the Court will set the overall amount of damages to be paid by Estée Lauder to consumers, to be deposited in a compensation fund;
ii) the Court will designate an entity responsible for managing the compensation fund, including the receipt, management and payment of compensation to injured consumers;
iii) the Court will set a deadline for consumers to claim their share of the compensation and this information will be publicized in various ways;
iv) consumers will have to contact the entity that manages the compensation fund, as well as submit the court-decided evidence and the respective payment instructions, in order to receive their share of the compensation;
v) at the end of the legally established period, if a part remains of the global compensation that was not requested by consumers:
(i) that amount will be used to pay the expenses incurred by Ius Omnibus as a result of the action; and
(ii) what is left will be handed over to the Ministry of Justice, to be used to support access to law and justice, including the promotion of popular actions.
Do consumers need to contact the Court or Ius Omnibus?
Consumers do not have to contact the Court or Ius Omnibus, nonetheless it may be in their interest to do so.
All consumers residing in Portugal, who, have purchased the products “Redness Solutions Soothing Cleanser With Probiotic Technology”, “Redness Solutions Daily Protective Base Broad Spectrum SPF 15” (or “Redness Solutions Daily Protective Base SPF 15”), “Redness Solutions Daily Relief Cream With Microbiome Technology” and “Redness Solutions Instant Relief Mineral Pressed Powder With Probiotic Technology”, all of the CLINIQUE brand, or any product equivalent to any of these products, from the same line, which has been substituted by one of these products or which replaces one of these products, in physical outlets or through online sales platforms are automatically represented in this popular action.
If they do not wish to be represented, they will have to exercise the right to opt-out.
If they do want to be represented, they do not need to do anything else for now to be entitled to compensation if Ius Omnibus wins this claim.
At the end of the process, if successful, they will have to contact the entity appointed by the Court to request compensation. However, if they wish to intervene in the action in support of Ius Omnibus they may do so, within the time limit established by the Court.
All consumers represented in this action are invited to contact Ius Omnibus at once, so that their data be registered and they be informed by Ius of all developments in this case, guaranteeing that they don’t miss the deadline to claim compensation, when that moment arrives.
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