Unintentional Drug Claims on Cosmetics Not Actionable

Unintentional Drug Claims on Cosmetics Not Actionable

Last month, a long running case against Beiersdorf, Inc., makers of Nivea, was dismissed.  I would normally prepare a summary myself, but in this case, the first 3 paragraphs of the court’s opinion provides a great summary:

Five years ago, Ashley Franz purchased a $10 bottle of Nivea’s Skin Firming Hydration Body Lotion from a CVS in San Diego. She spent an extra $4 on this Lotion because she believed the claim on the bottle: “Improves Skin’s Firmness in as little as 2 weeks.” When the Lotion didn’t firm her skin as advertised, she filed a class action against Beiersdorf, Inc. (“Nivea”) for false advertising and for selling an unapproved drug.

About a year ago, the Court dismissed Franz’s false advertising claim, and found the FDA had primary jurisdiction to decide if the Lotion was a drug. The Court stayed the case to allow Franz to petition the FDA to take enforcement action against Nivea for making skin-firming claims that Franz maintains makes the Lotion a drug that requires FDA approval. The FDA declined to take any action.

Franz filed a second amended complaint based on a single claim: Nivea is engaged in unfair competition because it’s selling the Lotion as an unapproved drug. Nivea moved to dismiss. Because the Court lacks jurisdiction, it dismisses the complaint.

Continue reading “Unintentional Drug Claims on Cosmetics Not Actionable”

Starbucks False Advertising Case Dismissed: Yes, Cold Drinks Contain Ice

Starbucks False Advertising Case Dismissed: Yes, Cold Drinks Contain Ice

(Okay– so this one isn’t specifically a “cosmetics” case– but its provides some good “Take Away” points) Last Friday (Aug. 19, 2016), a California federal judge dismissed a proposed class action against Starbucks based on its purported trickery of under filling its cups with actual liquid, explaining that a reasonable consumer would expect a cold drink to include both the liquid and ice.  In its order the court determined:

Starbucks has not stated that its Cold Drinks contain a specific amount of liquid. Instead, Starbucks has stated that its iced drinks, which contain some amount of liquid and some amount of ice, are offered for sale in cups of various sizes.

Continue reading “Starbucks False Advertising Case Dismissed: Yes, Cold Drinks Contain Ice”

Even More July Warning Letters…

Even More July Warning Letters…
  1. Today the FDA posted an additional 5 warning letters issued at the end of July to cosmetics companies addressing drug claims. The letters were issued to:  MiN New York;  Lavian Ltd.; Peter Thomas Roth Labs, LLC; TPR Holdings LLC; and Finally Pure, LLC. The challenged claims were very similar to those claims addressed in the other warning letters issued earlier in the month as discussed in my earlier post here.

Court Dismissals of “Made in USA” Class Actions

Two cases involving allegations that companies falsely labeled their products as “Made in USA” and thereby violated California’s “Made in USA” statute have recently been dismissed.  In April, the Southern District Court of California dismissed all claims against Heinz.  Then, earlier this month on June 6, the Central District Court of California dismissed all claims against Stearn’s Products.  In both cases, the issue came down to the fact the plaintiff simply did not adequately allege facts to state a claim under the law.  Importantly, in the Stearn’s case, the court also ruled that the new version of California’s “Made in USA” law applies retroactively to products put in the marketplace prior to January 1, 2016. Continue reading “Court Dismissals of “Made in USA” Class Actions”

FTC Challenges “All Natural” & “100% Natural” Claims

FTC Challenges “All Natural” & “100% Natural” Claims

On April 12, 2016, the Federal Trade Commission (FTC) announced agreements with four cosmetics companies to settle charges by the FTC that the companies falsely advertised their products as “all natural” or “100% natural” even though their products contained synthetic ingredients.  The FTC also issued a complaint against a fifth company. If you have attended one of my presentations, it is likely you have heard me speak extensively on this subject and FTC’s announcement last week would have come as no surprise.  Continue reading “FTC Challenges “All Natural” & “100% Natural” Claims”

“Made in USA” Right to Cure Legislation — Show Your Support for AB 2827

“Made in USA” Right to Cure Legislation — Show Your Support for AB 2827

Last month’s round table discussion at EO Products was very insightful and now there is a piece of legislation that needs your support.  As I previously discussed here, a significant number of companies doing business in California are facing frivolous class action lawsuits and threats of litigation because of their use of a “Made in USA” claim on their products.  Many of the companies do in fact meet the standard required under current law, but that hasn’t stopped plaintiffs’ attorneys.  In an effort to battle such frivolous suits, Assembly Member Marc Levine has introduced AB 2827 to provide companies with a right to cure period, including agreeing to make prospective changes to allegedly offending labels.  Below is language you may use to write to your representatives in the California legislature.  Not located in California? No problem– share this with any trade associations you are a member of or share it with your friends located in California.  Ask them to write their representatives.  I hope you will show your support.  Continue reading ““Made in USA” Right to Cure Legislation — Show Your Support for AB 2827″

California’s New “Made in USA” — Not Stopping Onslaught of New Litigation Based on Prior Conduct

California’s New “Made in USA” — Not Stopping Onslaught of New Litigation Based on Prior Conduct

During the 2015 legislative session,  California’s legislature amended its “Made in USA” law (previously discussed here) with SB 633.  Under the new law, effective January 1, 2016, products sold in California may legally be labeled with a “Made in USA” claim as long as certain conditions are met (discussed below).  Unfortunately, however, over the last 6 months, class action plaintiffs’ attorneys have sent hundreds of food and cosmetics companies letters threatening class action lawsuits unless the companies agree to hefty settlements.  And unfortunately, for many of the companies being threatened, it does not seem to matter whether the companies are manufacturing their products in California (or other U.S. states), sourcing their components from U.S. distributors, and otherwise seem to be in compliance with new law…or even the old.  But some companies are not taking it laying down. One such company, EO Products, is seeking legislative assistance and is holding a round table discussion with an Assembly member to discuss what appears to be frivolous litigation.  Would you like to participate? Continue reading “California’s New “Made in USA” — Not Stopping Onslaught of New Litigation Based on Prior Conduct”