A court in the Northern District of Illinois recently issued a mixed ruling dismissing in part a putative class action claiming that a company violated the Illinois Consumer Fraud Act (“ICFA”) by allegedly failing to disclose that its dry shampoo products potentially contained the carcinogen benzene.  Although the court allowed the case to move forward on the ICFA claim to the extent that the claims were based on a theory that the products were adulterated, the court found the ICFA claim preempted by the FDA to the extent it relied on a theory that benzene should have been included on the ingredients list.

The case, Bojko v. Pierre Fabre USA Inc., 2023 WL 4204663 (N.D. Ill. June 27, 2023) centers on a putative class whose members claim that they would have not bought the company’s shampoo had they known it contained benzene.  But whether the plaintiffs had standing was a highly contested issue.  Plaintiffs pointed to a third party testing center that had found benzene in four of seven of the company’s products.  Despite noting that the results of the testing were “relatively thin,” the court found this testing plausibly suggested that the products plaintiffs had bought had contained benzene because “a majority of the samples tested contained benzene.”

On the merits, plaintiffs argued that the omission of benzene from the ingredient list violated the ICFA.  However, the court recognized that benzene is not an “ingredient” under 21 C.F.R. § 700.3(e), nor an “incidental ingredient” under 21 C.F.R. § 701.3(1).  Therefore, to prevail on an ICFA claim under the Food, Drug, and Cosmetics Act (“FDCA”) under an omissions theory, the court reasoned, the ICFA must impose a requirement in addition to what federal law requires, which the FDCA expressly preempts.  The FDCA did not preempt an ICFA claim based on a theory of adulteration, however, because the FDCA prohibits the manufacture and sale of adulterated cosmetics.  Therefore, because there was nothing plaintiffs needed to show in addition to the federal requirements, their ICFA claim survived on that ground.

The Bojko decision adopted an approach to standing that conflicts with the approach taken by other courts in cases involving product contamination. See, e.g., Huertas v. Bayer U.S., LLC, 2023 WL 3773139 (D.N.J. May 23, 2023) (finding plaintiffs lacked standing where 12 of 13 products tested by the same company as that in Bojko tested positive for benzene).  Defendants should be mindful of the developing law in cases involving product contamination cases that seek economic damages.  But even if plaintiffs can cross Article III’s threshold, Bojko also underscores the importance of the interactions between state consumer protection laws and preemption doctrine in highly regulated industries.