We've heard about lots of lawsuits filed recently against companies like Poland Spring and Johnson & Johnson that hold the companies accountable for health problems and false claims. Now, another lawsuit joins the fray: A California woman is suing makeup giant Sephora, alleging that she contracted oral herpes from one of its product samples. She claims she went to one of the company's Hollywood stores in October 2015, tested a lipstick sample on display, and boom—she broke out in fever blisters on her lip, the main symptom of oral herpes.
When reached for comment, a Sephora spokesperson told Tonic in a statement: "While it is our policy not to comment on litigation, the health and safety of our clients is our foremost priority. We take product hygiene very seriously and we are dedicated to following best practices in our stores."
We don't know much more about the case, which was first reported yesterday, but it's not the first time someone has blamed their herpes infection on makeup and sued. In 2013, Starkeema Greenidge went to a Rihanna concert at Barclays Center, where MAC representatives were rolling out new products from a collaboration with the singer. Greenidge claimed that a MAC rep applied lipstick to her mouth, and she developed a cold sore on her lip two days later. The suit against MAC alleged that the rep "didn't use a fresh or new lipstick tube, but rather one that had been used for other patrons," and that MAC "should have known…it was unsanitary and exposing patrons to possible spread of disease," according to the New York Daily News. The outcome of that suit is unknown.
In the current Sephora lawsuit, the plaintiff's case is weak at best. First of all, 67 percent of people under the age of 50 have herpes simplex virus type 1 (HSV-1), the kind that causes oral herpes. Most people contract it during childhood, long before their first hookup. The odds are against you from the get-go, because it's unlikely that you've made it to adulthood without contracting HSV-1 to begin with.
The virus can lie dormant in your body for "an entire lifetime," says Terri Warren, an Oregon-based adult nurse practitioner who specializes in herpes viruses. That means you can acquire the virus as a kid when your herpes-infected cousin kisses you on the mouth, and you might not break out until you're 28 years old. Or 50 years old. Or never. That makes it almost impossible to pinpoint the when, where, who, or what details of how you got the virus. About 70 percent of people with HSV-1 don't show any symptoms, but for those who do, an initial outbreak would normally appear about two to ten days after contracting the virus, Warren says.
You'd have to be a really diligent person to conduct all the thorough action necessary to prove that you got the virus during a specific timeframe. In response to contracting HSV-1, your body produces antibodies against the virus, which take a few weeks or months to develop. Let's say someone suspects they got the virus on a Monday and they got fever blisters a few days later, maybe that Friday. To prove that a new infection of HSV-1 caused that outbreak—rather than an earlier infection that's been lying dormant in your body—you'd have to get your blood drawn and tested for the antibody. "If you get a cold sore and on that same day you test positive for the antibody, that's not a new [HSV-1] infection," Warren explains. "It's too soon for the antibody test to be positive. That indicates prior infection."
To have a case at all, the plaintiff would first have to prove that she got an antibody test when her cold sores appeared and that the test came back negative. Then, she'd have to show that she went back for a second blood test a few weeks later and that the test results came back positive. That would indicate that she did, in fact, recently contract the herpes virus, since her body only then had enough time to develop antibodies. "Unless she can document that she was seronegative—that is, she had no antibody to HSV-1—at the time she got her first cold sore and then subsequently seroconverted—that is, went from negative to positive—within a few weeks, she cannot prove she got it from that lipstick," Warren says. Even then, she still could have gotten it from direct contact with another person.
The risk of contracting the virus from an inanimate object is generally very low anyway, because the virus doesn't survive very long off of the human body. "That's extremely unlikely, but not impossible," Warren says. "Lipstick and lip gloss are my only two concerns about inanimate objects because a lipstick can stay moist—that's their function, to stay moist—and dark, under a cap."
Theoretically, if someone with fever blisters used the lipstick and within a few minutes or an hour, someone else smeared it on their own lips, transmission would be possible. But even then, the risk is extremely low because the virus would have to enter your body through a mucus membrane like the inside of your mouth or up your nose, says Yvonne Bryson, a professor of pediatric and infectious diseases at the University of California at Los Angeles. "The actual lip is not a mucus membrane, so you would have to put the lipstick inside your mouth," she says. I don't often see people sucking on lipstick tubes, so that seems an unlikely scenario. Even if for some reason you did get the lipstick inside your mouth, by licking your lips or accidentally smudging it on your teeth, there wouldn't be enough virus present to infect you, Bryson adds.
If the case does make it to court, the plaintiff will have to be prepared to answer lots of questions to prove the lipstick was the problem. "She's going to have to make the case that one, the diagnosis truly is herpes and that it was medically diagnosed and documented as such, two, that it was a new and not recurrent infection, and three, that there was no other plausible source," says H. Hunter Handsfield, professor emeritus of medicine at the University of Washington and a spokesperson for the American Sexual Health Association. More probable scenarios being, I don't know, that she kissed someone with the virus.
"People get herpes all the time," Bryson adds. "To prove that it came from a lipstick would be very difficult."
Just to be safe, practice better hygiene when you're sampling products in store. "I'm surprised that someone actually used the lipstick," she says. The best way to sample lipstick, if you must, is to use a cotton swab or disposable brush to scrape some product off from the side of the lipstick—not the top where it would be applied directly to the lips.
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