Brown v. Cover Girl Cosmetics

Background

Deborah Brown brought a proposed class action against Coty, Inc., alleging that CoverGirl Lash Blast Volume Waterproof Mascara and CoverGirl Clump Crusher Waterproof Mascara contained PFAS, including certain substances identified through laboratory testing, without that information appearing on the products’ packaging. Brown alleged claims under New York General Business Law §§ 349 and 350, which address deceptive consumer practices, as well as claims for breach of express warranty, breach of implied warranty, and unjust enrichment.

Brown alleged that she purchased one or more tubes of Lash Blast, relied on the product’s packaging, labeling, and ingredient list, and would not have bought it—or would have paid less—if she had known it contained PFAS. She sought to represent people in the United States who purchased Lash Blast or Clump Crusher. The opinion states that Brown had not yet moved for class certification. Brown had previously voluntarily dismissed all claims against a defendant named Cover Girl Cosmetics; Coty remained the defendant in the operative caption.

Coty moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which addresses subject-matter jurisdiction, and Rule 12(b)(6), which addresses whether a complaint adequately states a claim. Coty also raised Rule 9(b) arguments, but the court did not reach them because its Rule 12(b)(6) analysis resolved the motion. The court denied Coty’s request for oral argument and declined to take judicial notice of documents submitted in the parties’ briefing.

Analysis

Standing. The court rejected Coty’s argument that Brown lacked standing because she alleged only economic injury. Brown alleged that she paid for a product she would not have purchased, or would have purchased only at a lower price, if Coty had disclosed the alleged PFAS content. The court held that this alleged price-premium injury was sufficient to establish standing for her own Lash Blast claims.

The court agreed, however, that Brown lacked standing to bring claims concerning Clump Crusher. A purchaser may sometimes bring claims involving a product she did not buy when the purchased and unpurchased products are sufficiently similar and raise nearly identical concerns. Brown alleged only that both products were CoverGirl waterproof mascaras containing undisclosed PFAS. She did not allege that they contained the same PFAS at the same levels. The court therefore granted Coty’s motion as to Brown’s class claims concerning Clump Crusher.

Consumer-protection, express-warranty, and unjust-enrichment claims. The court held that Brown did not plausibly allege that reasonable consumers were likely to be misled. Brown pointed to statements on Coty’s website and in a press release, but she did not allege that she or proposed class members relied on those statements when purchasing Lash Blast. The court also characterized the statements as nonactionable puffery—broad, vague, aspirational statements that cannot be objectively proven true or false—and noted that they did not describe a particular product.

The court separately held that Brown did not identify a specific product statement on which she relied, as required for her express-warranty claim. Her allegation that Lash Blast’s packaging failed to disclose PFAS was not enough to identify a particular express promise or statement.

The court also found that Brown had not adequately pleaded that the alleged PFAS made Lash Blast unsafe or unfit for its ordinary use. The complaint did not specify which PFAS were present in Lash Blast or at what levels, while acknowledging that different PFAS can cause different harms at different exposure levels. Brown also did not allege that Lash Blast was represented as PFAS-free or identify why a reasonable consumer would assume that it contained no PFAS. The court further found that the complaint did not provide enough detail about whether PFAS resulted from intentionally added ingredients, impurities, degradation, or the treatment of ingredients.

For these reasons, the court held that Brown failed to state claims under New York General Business Law §§ 349 and 350 and failed to state an unjust-enrichment claim. It also granted Coty’s motion as to the express-warranty claim.

Implied warranty. The court granted Coty’s motion as to Brown’s implied-warranty claim because Brown did not allege that she purchased Lash Blast directly from Coty. She also did not identify the retailer or a contract between Coty and that retailer that was intended to benefit her or the proposed class. Her conclusory allegation that consumers were intended beneficiaries was insufficient.

Because Brown did not state a claim concerning Lash Blast, the court held that corresponding claims could not proceed on behalf of the proposed class.

Disposition

The court granted Coty’s motion to dismiss in its entirety. The court granted Brown’s request for leave to amend and ordered her to file an amended complaint by April 12, 2023. The court denied Brown’s pending motion to appoint interim class counsel without prejudice to renewal. It also adjourned the scheduled case-management conference indefinitely and directed the Clerk of Court to terminate the two motions identified in the order.