For years, cosmetics and other personal care companies have faced calls for "cleaner" products and more transparent labeling. And every day, new ingredients get added to the "naughty" list. Recently, per- and polyfluoroalkul substances (PFAS)—a group of manmade chemicals used primarily for their conditioning properties—have come under fire. Even as research indicating the dangers of PFAS is limited, the widespread use of PFAS has led to state restrictions on use in personal care products, and proposed legislation that would ban PFAS in cosmetics on a federal level.
Consistent with that trend is a spate of consumer-driven putative class actions against cosmetics companies for alleged use and failure to disclose the presence of PFAS in their products. By and large, the alleged harm is economic: rather than claiming that they have suffered personal injury, plaintiffs insist that they would not have purchased them (or paid as much) if they had known about PFAS in the products. And to date, many of these lawsuits have yet to get over the Article III standing hurdle at the motion to dismiss.
For example, in November 2023, the court in Equibel, et al. v. Colgate-Palmolive, Co., et al., No. 1:23-cv-00742 (S.D.N.Y.) dismissed a putative class action involving a line of mouthwash products. Plaintiffs alleged that the products contained PFAS and asserted false advertising, warranty, fraud, unjust enrichment, and consumer protection act claims. The court in Equibel concluded that plaintiffs failed to allege facts to support their claim that the mouthwash products were systemically contaminated, and plaintiffs' sparse allegations about third-party testing was insufficient to show the specific bottles of mouthwash that plaintiffs actually purchased contained PFAS, as required for Article III standing. In its ruling, the court reminded plaintiffs that they could not rely on the standing of absent class members and it rejected plaintiffs' argument that the mere risk of PFAS contamination constitutes injury-in-fact.
Two months earlier, another court in the same district dismissed Hicks, et al. v. L'Oreal USA, Inc., No. 1:22-cv-03926 (S.D.N.Y.), a putative class action in which plaintiffs alleged that they overpaid for mascara containing PFAS and which L'Oreal had represented as high quality and safe for use. Similar to the court's reasoning in Equibel, the Hicks court concluded that plaintiffs lacked Article III standing because they failed to sufficiently allege that the mascaras they personally purchasedcontained PFAS. Although plaintiffs also relied on third-party testing that found the presence of PFAS in various cosmetics, plaintiffs did not allege that any L'Oreal product (mascara or otherwise) was part of that testing, and the Court found that the operative complaint was murky on the findings of that testing in the first place.
Additionally, six months before Hicks, in March 2023, two courts in the Southern District of New York dismissed two other putative class actions involving CoverGirl and bareMinerals cosmetics on much the same grounds. In Brown v. Coty, No. 1:22-cv-02696 (S.D.N.Y) and Onaka v. Shiseido Americas Corp., 1:21-cv-10665 (S.D.N.Y.), both courts concluded that the plaintiffs lacked Article III standing because they had failed to allege that the products they actually purchased contained PFAS or that the use of PFAS was pervasive enough to make it plausible that their products did contain the ingredient. Additionally, in Brown, the court also held that the plaintiff had not plausibly alleged that reasonable consumers were misled by any alleged omission about PFAS because there was no allegation that she or any putative class members actually relied on any specific statements when purchasing their cosmetic products, and the statements in CoverGirl's advertising amounted to nonactionable sales "puffery." In Brown and Onaka, the plaintiffs have amended their respective complaints, and motions to dismiss are now pending.
Despite these early standing challenges, the attention on PFAS is unlikely to subside any time soon, and cases alleging economic harm from PFAS-containing products are likely to continue. Going forward, however, cosmetic companies may have yet another way to dispose of these lawsuits early on in the proceedings. Along with the recent expansion of the U.S. Food and Drug Administration (FDA) authority over cosmetics under the Modernization of Cosmetics Regulation Act (MoCRA), the FDA is directed investigate and report on the use and safety of PFAS in cosmetics. Additionally, a new federal bill, the "No PFAS in Cosmetics Act," seeks to ban the sale of cosmetics with intentionally-added PFAS as "adulterated cosmetics." With FDA's forthcoming guidance (and/or if the new federal bill becomes law), cosmetics companies will be able to rely on the primary jurisdiction doctrine, arguing for a dismissal because the FDA, not the courts, is the proper authority to determine whether the presence of PFAS in cosmetics is unsafe. See, e.g., In re: Beech-Nut Nutrition Company Baby Food Litig. 651 F. Supp. 3d 629, 634-37 (N.D.N.Y. 2023) (granting motion to dismiss case alleging toxic heavy metals in baby food products on primary jurisdiction grounds because the FDA had announced plan to research the presence of heavy metals in baby food, and therefore, the FDA had primary jurisdiction).
Originally published on February 27, 2024
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