Dry shampoo recall could lead to class-action lawsuits, lawyers say

After the brand Unilever filed a recall for more than 1.5 million dry shampoo products over the detection of a cancer-causing chemical, lawyers say customers are likely to take legal action especially as the number of incident reports related to the product increase.

Health Canada issued a recall in October for 1,574,426 dry shampoo products under popular drugstore brands like Dove, Bed Head TIGI and Tresemmé following the detection of the chemical benzene. Unilever said while it does not use benzene in its products, it issued the recall to be cautious.

This liquid chemical found in gasoline is a carcinogen and in cases of exposure to large amounts of it, can lead to cancers like leukemia or other life-threatening blood disorders. As of Wednesday, Health Canada has already reported more than 100 inquiries, incidents and injuries. Most of the incidents and injuries have involved irritation and allergic reactions following the use of the affected dry shampoo products.

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"This can absolutely lead to a class action lawsuit," B.C.-based class-action lawyer David Klein told CTVNews.ca on Wednesday.

Klein says if a class-action lawsuit were to ensue, there are two specific groups of people that would be able to make a claim if they're able to prove the manufacturer knew or should have known about the contamination.

"The first is, of course, people who have suffered any form of injury as a result of benzene, and the second are those (related) to the over a million products that were purchased and are now of no value and have to be thrown in the garbage," he said.

Ontario-based personal injury lawyer Peter Murray told CTVNews.ca in a phone interview on Wednesday that class-action lawsuits can only work if all plaintiffs can show they experienced the same issue, which may be difficult to prove for the first group since injuries can differ from person to person.

In this case, Murray says, Unilever could be faced with a "mass tort," which is when several individual claims are made about the same product but have similar issues instead of identical. Nonetheless, a class-action lawsuit could be easily made for the second group who had to spend money on a now-useless product and potentially feels anxious about using products from a brand they had once trusted, Murray says.

Unilever's recall advised customers to stop using the products immediately and dispose of them, additionally including an offer of reimbursement or refund to customers. The effectiveness of the help given to affected customers will likely determine the amount of legal action they could face, Murray says.

"It's only when there's a disconnect between doing the right thing and the profit motive of some manufacturers that you really get into class action or the need for class action," he said.

Murray recommends any Canadians who purchased the product or experienced any damage to keep any proof they have if they are considering legal action. Proof like store receipts, photos of physical injury or a doctor's note will be crucial to building a case.

"It'd be good to find out if you have any specific allergy or high sensitivity to exposure to benzene because some people are more sensitive and 'thin-skulled' as we call it than others," he said.

While it can be in good faith for companies to give individuals who weren't significantly impacted a refund or reimbursement, Murray says for those who may want to file a claim should read all the details of the compensation and consider getting legal advice first.

"If you're talking about return of a bottle that's one thing, and it probably is insignificant, but if it's significant skin damage or otherwise, then it's something that you may want to consider getting more details and getting yourself more informed prior to signing on the dotted line," he said.