Cook County Record

Monday, August 19, 2019

Class action claims vs Blistex over lip ointment packaging 'defies common sense,' judge says

By Jonathan Bilyk | Jul 12, 2017

A Chicago federal judge has shelved a California woman’s class action lawsuit against the Oak Brook-based maker of Blistex lip ointment, saying her claims the company smears its customers by selling their product in tubes that leave a quarter of the ointment inaccessible “defies common sense.”

On July 5, U.S. District Judge Elaine E. Bucklo dismissed the lawsuit brought by plaintiff Alana Hillen against Blistex Inc., which Hillen had sought to turn into a class action involving potentially millions of others who have purchased Blistex’s lip ointments in the past three years.

Hillen was represented in the action by attorneys with the Pavich Law Group, of Chicago, and the firm of Zimmerman Reed LLP, with offices in Minneapolis and Manhattan Beach, Calif.

“…As other courts have observed, consumers are generally aware that they may not be able to extract every bit of common products such as “toothpaste, peanut butter, shampoo, and many other products” from their packaging,” Judge Bucklo wrote in her opinion. “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.”

HIllen’s lawsuit, which she filed in March, had centered on Blistex’s medicated lip ointment which, the complaint noted, “comes in a uniquely designed tube,” which the complaint compared to a “miniature tube of toothpaste” with a “hard, plastic dispenser” attached to the top of the tube, which is used to spread the ointment on lips.

The lawsuit asserted the dispenser attachment “is hollow and retains a significant volume of empty space, especially in comparison to the volume of the tube,” and “prevents a significant amount of the lip ointment from being used.”

In all, the lawsuit claimed Blistex customers receive only about 4.65 grams of the product, when the tube claims to contain 6 grams of ointment.

“Consumers are losing approximately 23 percent of the product because of the dispenser design,” the lawsuit claims.

Further, the lawsuit alleged the design flaw is unique to the U.S., as Blistex sells its lip ointment in tubes with “significantly smaller dispenser(s)” in other countries, including the United Kingdom, which minimize the amount of product left in the tube.

In response, Blistex asked the court to dismiss the lawsuit arguing Hillen lacked standing to file the suit, and noting Blistex does not actually defraud its customers.

Bucklo found Hillen did have standing to bring the action, as she said Hillen doesn’t claim Blistex charges too much, but rather caused her  to “purchase more of the product – and thus to spend more of her money – than she would if another tube design were used.”

However, the judge said Hillen’s complaint falls apart on substance, particularly as her complaint largely focuses on the lip ointment’s allegedly deceptive plastic applicator tip.

“The alleged deception, in plaintiff’s view, is that the dispenser’s hard plastic tip ‘appears to be solid, even though it is hollow,’” the judge wrote. “This allegation defies common sense. If the tip of the tube were solid, how would the product travel through it to reach the user’s lips? No reasonable consumer would expect a completely solid tip.”

The judge ordered the case dismissed in its entirety.

Blistex was defended in the action by the firm of Benesch Friedlander Coplan & Aronoff LLP, of Chicago.

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Organizations in this Story

Benesch, Friedlander, Coplan & Aronoff LLP Pavich Law Group P.C U.S. District Court for the Northern District of Illinois