Ditto on the Mary Kay website. It also points out that in December 2011 Mary Kay became a founding member of an international consortium to promote nonanimal safety testing. "This is a passionate issue for us," said Beth Lange, Mary Kay's chief scientific officer, in a statement at the time. "We are deeply committed to the elimination of animal testing." Nathan Moore, chief legal officer at Mary Kay, declined to comment for this story.
The plaintiffs, represented by the California law firms Eagan Avenatti and The X-Law Group, allege that the website disclosures were "wholly inadequate and deceptive."
PETA agrees. Kathy Guillermo, senior vice president of laboratory investigations at the animal rights organization, says PETA exposed the three companies after receiving leaked information that they were paying for tests in China. Guillermo, who headed a PETA campaign that targeted those same three companies in the 1980s and persuaded them to end animal tests then, says that the revelation was "personally painful." On the suit, she adds: "I completely understand the anger of the consumers about this. PETA felt betrayed right along with all of the consumers who purchased their products for the last two decades believing that no animals were harmed."
In recent months the lawsuit has been modified. U.S. District Judge Cormac Carney has split the three cases, and they are following slightly different paths. On November 15 the Mary Kay case was ordered into mandatory mediation. The company is represented by Gibson, Dunn & Crutcher and Skadden, Arps, Slate, Meagher & Flom.
In the case against Avon, the plaintiffs refiled and dropped the false advertising count. As of this writing, it was still in the pretrial motion stage. Avon is represented by Paul Hastings.
In the suit against Estée Lauder, Carney has dismissed parts of the complaint due to lack of specificity. But he denied two other arguments by the Skadden lawyers over nondefective products. He found that a product change that doesn't concern safety issues can still give rise to a duty to disclose. "A fact need only be material to trigger a duty to disclose," he wrote in his decision. And he ruled that purchasing a nondefective product could still constitute a sufficient injury for purposes of standing. As of this writing, the case was in discovery.
Animal testing has long been a hot issue in California. Twice in the 1990s its state legislature passed bills to eliminate animal testing, including at its medical centers. But two different governors vetoed the legislation, after they were lobbied by the National Institutes of Health, the Food and Drug Administration, and other federal agencies.
PETA's Guillermo says that her group understands the legal bind that companies are in. That's why it added a new listing category for corporations that are transparent about their testing and actively working for regulatory change. Avon, Estée Lauder, and Mary Kay, however, are not on that list. Why not? "They won't release information on what tests are being done, or on how many animals," she says. "These three companies have gone backwards."
This article originally appeared in Corporate Counsel under the headline “Cross-Examination.”
Subscribe to Corporate Counsel
