Judge dismisses case alleging Blistex used deceptive packaging for lip product

By John Severance | Aug 8, 2017

CHICAGO (Legal Newsline) – A U.S. District Court judge has ruled in favor of lip product manufacturer Blistex, which filed a motion to dismiss a class action lawsuit that alleged Blistex had used deceptive packaging in selling one of its products.

Alana Hillen filed a lawsuit individually and others similarly situated against the lip product manufacturer in the U.S. District Court for the Northern District of Illinois, Eastern Division, claiming the Blistex tube it used to sell its product was designed so customers can not get 25 percent of the lip balm out of the tube.

Elaine E. Bucklo, a U.S. district judge, was not buying the deceptive package argument.

In her July 5 opinion, Bucklo writes, "Where plaintiff’s claims fall short, however, is in their substance. To state a claim under the ICFA (Illinois Consumer Fraud and Deceptive Business Practices Act), plaintiff must allege '(1) a deceptive act or practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception, (3) the occurrence of the deception in the course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception.'”

Bucklo wrote that the plaintiff’s fraud claims failed because her complaint did not allege deception.

"Plaintiff does not contend that the tubes of Medicated Lip Ointment she purchased contained less of the product than the net weight stated on the label. Nor does she claim to have been surprised by the shape of the tube, which indeed is pictured on the packaging. The alleged deception, in plaintiff’s view, is that the dispenser’s hard plastic tip 'appears to be solid, even though it is hollow,'" Bucklo wrote.

But Bucklo wrote in her opinion that Hillen's allegation defied common sense.

"No reasonable consumer would expect a completely solid tip. Even, however, if plaintiff’s allegations about the solid tip are construed as alleging a deceptively cavernous tip, they come no closer to stating an ICFA or a common law fraud claim," she wrote.

It is pretty much a given, the judge wrote, that consumers cannot extract every bit of product out of things like toothpaste, shampoo and peanut butter.

"Put simply, plaintiff’s disappointment in defendant’s tube design does not establish deception, nor does it transform defendant’s accurate labeling of the product’s net weight into fraud by omission," Bucklo wrote.

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