Blistex: Lip ointment tube is not deceptive, unless 'toothpaste tubes everywhere be deemed deceptive'

By Sara McCleary | May 30, 2017

CHICAGO (Legal Newsline) – Lip product manufacturer Blistex has filed a motion to dismiss a class action complaint against it alleging that it uses deceptive packaging for one of its products.

Alana Hillen filed a lawsuit individually and on behalf of all others similarly situated against Blistex in the U.S. District Court for the Northern District of Illinois, Eastern Division. Hillen alleges the company uses deceptive packaging, claiming that the tube in which Blistex sells its Medicated Lip Ointment is designed in such a way that consumers cannot get approximately 25 percent of the product out of the tube.

In response to the allegations, Blistex argues in its motion, “That plaintiff would, allegedly, have to work extra hard to obtain the last drops of the product does not render the tube deceptive (lest toothpaste tubes everywhere be deemed deceptive).”

Quoting from the U.S. Court of Appeals for the Ninth Circuit's decision in the 2016 case Ebner v. Fresh Inc., the motion points out that “the court held no reasonable consumer could be deceived, and found that ‘[t]he reasonable consumer understands the general mechanics of these dispenser tubes and further understands that some product may be left in the tube.’”

The motion states that Hillen argues the company should include a disclaimer detailing the exact amount of lip ointment accessible, and its failure to do so amounts to fraud by omission. However, in response Blistex points to another similar case in which a suit was brought against a company alleging that its propane cylinders could not be fully emptied, and the company was aware of the fact. 

In that case, the court referred to other products such as toothpaste and shampoo to note that “the general consumer is generally aware that she may not be able to extract every bit of a product from its packaging.”

Another allegation Hillen makes against Blistex is that the company designed its Medicated Lip Ointment tube with the intention of deceiving consumers, purposefully preventing them from using the entire contents of the product. 

As a result of this alleged deception, comments the motion, the plaintiff claims that “she has been forced to throw away tubes of the product prematurely and purchase extra tubes unnecessarily, thus unjustly enriching Blistex at her expense.”

To this, Blistex argues that the plaintiff paid for six grams of the lip ointment, and that is what she received. “Even if she could not access it all, it is not as though the unused product returns to Blistex,” reads the motion. 

“And, even if she purchases more sooner than she would like, Blistex is still selling all of the product it claims to be… Blistex does not keep and resell that product any more than it resells the product from tubes consumers lose and thus purchase a replacement.”

The motion to dismiss, filed on April 5 by attorney Mark S. Eisen from Chicago law firm Benesch, Friedlander, Coplan & Aronoff LLP asks the court to dismiss the complaint with prejudice for a lack of standing, or for failure to state a claim for relief.

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