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.