A judge in the Northern District of California recently held that a purchaser of eye makeup allegedly containing eye irritants lacked standing to pursue her claims—given that the product was not banned by the FDA and did not actually harm her eyes.

In Wilson v. ColourPop Cosmetics, LLC, 2023 WL 2023 WL 6787986 (N.D. Cal. Sept. 7, 2023), the plaintiff on behalf of a putative class alleged that she had purchased eye makeup, such as eyeshadow and eyeliner, containing various color additives, including “FD&C Red No. 4” and “D&C Brown No. 1.”  Id. at *1.  The complaint alleged that those ingredients “can cause physical injuries, including eye pain, skin irrigation, skin tanning, and damage through their toxicity when they enter the body.”  Id.  Plaintiff was unaware of the dangerous nature of these ingredients when she purchased the products and alleged that she “would not have purchased them” had she known about them.  Id. at *2.  Plaintiff did not, however, allege that she was physically injured in any manner from using the products.  Id.

The defendant argued that because the FDA had not banned the use of those additives in eye makeup, and because plaintiff suffered no physical injury from those additives, she lacked Article III standing.  Id. at *4–5.  The court agreed.  Id.  It held that because Plaintiff “neither plausibly alleged that she suffered any injuries the Harmful Ingredients can cause, nor has she shown there is a high probability, or any for that matter, that injury will imminently occur in the future,” any physical injuries are purely speculative—and so do not rise to the level required for Article III standing.  Id. at *5.  It further held that “the FDA is responsible for making that determination” of whether such products are illegal to sell, but it had not banned this product.  Id. For that reason, plaintiff’s allegation that the products “are unsafe is not a fact, but rather, is conclusory in nature.”  Id. at *4.  Likewise, because plaintiff was not physically injured by the products (and presumably used them for their intended purpose without issue), she received the benefit of her bargain.  Id. at *5. 

The Wilson v. ColourPop Cosmetics decision is one of many in the past decade grappling with the following question: “If a product contains a contaminant but no one gets sick, did it cause an injury?”  We previously wrote in depth about this issue, reviewing similar cases across the country.  There, we noted that at least some courts in the Ninth Circuit had allowed cases fitting this mold to survive a motion to dismiss, such as where the plaintiff alleged injury from using a prenatal vitamin contaminated with heavy metals—without any physical injury.  Barnes v. Nat. Organics, Inc., 2022 WL 4283779, at *4 (C.D. Cal. Sept. 13, 2022); see also In re Plum Baby Food Litigation, 2022 WL 16640802, at *1 (N.D. Cal. Jan. 12, 2022) (holding that plaintiffs adequately alleged an injury in fact by claiming they would not have paid the purchase price for baby food had they known the products contained heavy metals).

This more recent decision demonstrates that this issue remains unsettled in the Ninth Circuit.  Our prior observation remains true: Judges across the country remain divided on this issue.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Alex Setzepfandt Alex Setzepfandt

Focusing on class actions, Alex Setzepfandt regularly advises clients in the life sciences and financial services industries in complex litigations involving product defects and mass torts. He also has experience representing both plaintiffs and defendants in commercial actions, including breach of contract, insurance…

Focusing on class actions, Alex Setzepfandt regularly advises clients in the life sciences and financial services industries in complex litigations involving product defects and mass torts. He also has experience representing both plaintiffs and defendants in commercial actions, including breach of contract, insurance recovery, and business tort actions.

Alex handles all phases of litigation, including initial pleadings, discovery, trial, and appeals. His experience includes drafting complaints and dispositive motions, arguing discovery motions, taking and defending depositions, negotiating discovery and pre-trial stipulations, and assisting with a broad range of tasks at trial.

Through his active pro bono practice, Alex has honed his oral advocacy skills. His experience includes:

  • Directly examining his client and giving the closing argument at a jury trial in SDNY;
  • Arguing motions in limine and other pre-trial matters;
  • Presenting an oral argument in the 11th Circuit; and
  • Acting as lead counsel at multiple mediations in federal courts.
Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities. Representative victories include:

  • Delivered wins in multiple nationwide class actions on behalf of large financial companies related to fees, disclosures, and other banking practices, including the successful defense of numerous lenders accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recent recognition as a “Class Action Group Of The Year.”
  • Successfully defending several of the nation’s leading financial institutions in a wide variety of litigation and arbitration proceedings involving alleged violations of RICO, FCRA, TILA, TCPA, FCBA, ECOA, EFTA, FACTA, and state consumer protection and unfair and deceptive acts or practices statutes, as well as claims involving breach of contract, fraud, unjust enrichment, and other torts.
  • Successfully defended several of the nation’s leading companies and brands from claims that they deceptively marketed their products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Obtained favorable outcomes for numerous clients in commercial disputes raising contract, fraud, and other business tort claims.

Because many of Andrew’s clients are subject to extensive federal regulation and oversight, Andrew has significant experience successfully invoking federal preemption to defeat litigation.

Andrew also advises clients on their arbitration agreements. He has successfully helped numerous clients avoid multi-district class-action litigation by successfully enforcing the institutions’ arbitration agreements.

Clients praise Andrew for his personal attention to their matters, his responsiveness, and his creative strategies. Based on his “big wins in his class action practice,” Law360 named Mr. Soukup a “Class Action Rising Star.

Prior to practicing law, Andrew worked as a journalist.