Hicks v. L'Oreal U.S.A., Inc.

Background

The plaintiffs alleged that L’Oréal marketed several L’Oréal Paris and Maybelline waterproof mascaras as safe, effective, high quality, and suitable for use around the eyes while failing to disclose that the products contained per- and polyfluoroalkyl substances, commonly called PFAS. They asserted claims under consumer-protection laws in several states, warranty claims, fraudulent-concealment and unjust-enrichment claims, and related common-law claims. They sought to represent nationwide and state subclasses.

The plaintiffs relied on two studies. A University of Notre Dame study found fluorine or PFAS in some cosmetics, but the complaint did not allege that the study tested L’Oréal products. A separate study commissioned by the plaintiffs detected several PFAS in certain L’Oréal waterproof mascaras. The complaint did not state how many products were tested, how many tested positive, when the testing occurred, or whether the results applied to the products the named plaintiffs actually purchased.

Standing analysis

L’Oréal moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(6) for failure to state a claim. The court began and ended with standing, which is the requirement that a plaintiff show a concrete personal injury that the defendant caused and that a court can remedy.

The plaintiffs relied on a price-premium theory: they claimed they paid more for mascara that they would not have purchased, or would have purchased for less, had they known about PFAS. The court recognized that this type of financial injury can establish standing. But the court held that the plaintiffs had not alleged enough facts to make it plausible that their own purchased products contained PFAS or faced a material risk of containing PFAS.

The court rejected L’Oréal’s arguments that the plaintiffs had not adequately shown that PFAS were harmful or present in harmful amounts as premature at the motion-to-dismiss stage. The court accepted the complaint’s plausible allegations about those issues for purposes of the motion. The court instead focused on the missing connection between the studies and the plaintiffs’ own purchases. General allegations about PFAS in cosmetics, without more information about the studies’ samples and prevalence of PFAS, did not establish that PFAS appeared systematically and routinely in the purchased products.

Disposition

The court held that none of the named plaintiffs had established standing on the allegations in the Amended Complaint. It granted L’Oréal’s motion to dismiss and dismissed the Amended Complaint without prejudice. The conclusion also states that the court dismissed the eleven causes of action without prejudice.

The court granted the plaintiffs’ request for leave to amend. It permitted them to file a second amended complaint by November 3, 2023, if they could plead facts that cured the standing-related deficiencies and adequately stated their claims. The court directed the Clerk of Court to close Docket Number 29.