Article

Hair dyes and health - a failure to warn

In September 2003 Catherine Everett suffered a type IV allergic reaction after using L’Oreal hair dye product Feria Color Chocolate Cherry. Her face swelled “to the size of a watermelon”. She could not open her eyes or see (due to the swelling), was “completely terrified!” and thought she “was going to die”. This is a familiar, if relatively rare, account following the use of a hair dye product. L’Oreal offered her £500 “ex-gratia” (without admission of liability). Ms Everett instructed TS&P and will now bring proceedings for damages pursuant to the Consumer Protection Act 1987 for supplying a defective product and paragraph 4 of the Cosmetic Products (Safety) Regulations 2003 for supplying a cosmetic product which was liable to cause damage to her health. The world market for hair dye sales is colossal and has been said to be worth £30 million per day in product sales for the hair dye industry. From 1974-1976 432,499176 units of hair dye were sold in the USA alone. In August 2003 APIL (The Association of Personal Injury Lawyers) issued an alert “Lawyers warn women of hair dye chemical risks” and continue to take an interest. This alert drew the attention to the problems of injuries following the use of hair dyes
and specifically identified PPD (p-phenylenediamine) - an ingredient in hair dyes. There continues to be media interest including a recent BBC Watchdog report, and at the time of writing, a forthcoming ITN report by Trevor McDonald is in the research stage. The main legal issues centre around whether current label warnings are adequate.

It is noteworthy that industry label warnings have changed over time from - “IMPORTANT: THIS PRODUCT CAN CAUSE AN ALLERGIC REACTION, WHICH IN CERTAIN RARE CASES MAY BE SEVERE. IT IS THEREFORE ESSENTIAL TO FOLLOW THE PRECAUTIONS BELOW”.. and now by adding the words... “TO HELP YOU REDUCE THE RISK OF ALLERGIC REACTION” Thus there is no guarantee of avoiding an allergic reaction only a reduction of the risk. The industry should admit that product sensitivity tests are not fail safe and that consumers remain at risk of suffering severe allergic reactions and label their products - “Failure to carry out a sensitivity test before using this product may result on rare occasions in serious injury (or death). By carrying out a sensitivity test this does not
guarantee that you will not have an adverse reaction as on some occasions this test may fail”.

Other issues fall under the general heading of the education of consumers using hair dyes in that even professional hairdressers fail to appreciate the risks involved and that hair dye manufacturers do not publish warnings for their customers, for example, in their TV advertising. This would help to educate their customers as to the hazards of using hair dyes. Is there a way forward for the hair dyes industry to allay concern as to public health and to prevent future injuries? The industry could remove PPD from its products entirely and so prevent some injuries occurring at all. However it is understood that the
industry claims that there is no alternative to PPD. Surely it cannot be acceptable for a manufacturer to continue to sell a product simply because there is no alternative ingredient particularly in the case of a non-essential cosmetic - rather than medicinal product.

We have seen this type of argument put forward before (and fail) in the case of older style pesticides where the public were told “there simply is no alternative”. Nonetheless those pesticides - the “Dirty Dozen” that Greenpeace and others campaigned to remove - have largely faded away and been replaced with newer products. Whether the European Commission will demand a ban on PPD remains to be seen. The hair dyes industry should openly admit, and accept responsibility for, the fact that their products are capable of causing allergic reactions and compensate their customers accordingly by introducing a no-fault scheme of compensation. This would be preferable to denying claims when they arise and forcing their customers into litigation. Alternatively there is nothing in the least unreasonable in expecting the industry to pay compensation to the relatively few consumers who buy one of their hair products in good faith but, in spite of following the instructions, are unfortunately injured by it. The
small dent in the balance sheet caused by the occasional payment of relatively modest compensation would not even be noticed. It may well be thought that it is quite wrong of the industry to make such payments (when they do) proclaiming them to be some form of magnanimous gesture: they are not. If the payment is adequate it is nothing more than the proper discharge of their legal obligations.

For further enquiries please contact Jonathan Clement (view full profile) on 01892 701264 or email jclement@ts-p.co.uk.

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