Brown v. Cover Girl Cosmetics

Background

The plaintiffs brought a proposed class action challenging the alleged presence of per- and polyfluoroalkyl substances, or PFAS, in two CoverGirl waterproof mascaras manufactured by Coty, Inc.: Lash Blast Volume and Clump Crusher. They asserted claims under consumer-protection laws in New York, Illinois, California, Michigan, Nevada, North Carolina, and Virginia, plus a New York unjust-enrichment claim.

The amended complaint alleged that a study of 231 cosmetic products found fluorine in some cosmetics and that testing commissioned by the plaintiffs found five types of PFAS in Lash Blast and four types in Clump Crusher. The plaintiffs alleged that Coty’s product labels and ingredient lists did not disclose PFAS. Each plaintiff alleged purchasing one or more of the products, relying on Coty’s advertising, packaging, labeling, ingredient lists, and disclosures, and would not have purchased the product or would have paid less if she had known it contained PFAS.

Coty moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 9(b). The court addressed the Rule 12(b)(1) challenge first because standing is a jurisdictional requirement that must be resolved before the merits.

Standing Analysis

Article III standing requires an injury in fact, a connection between the injury and the defendant’s conduct, and a likelihood that a favorable decision would remedy the injury. The plaintiffs claimed they overpaid for products because they were misbranded or inadequately labeled. The court explained that this theory required them to plausibly allege that at least one product purchased by each plaintiff actually contained PFAS.

The plaintiffs conceded that they had not tested the individual products they purchased. The court stated that this fact alone did not defeat standing, but the plaintiffs still had to allege facts making it plausible that PFAS was sufficiently widespread that each plaintiff had purchased a mislabeled product at least once.

The court found the allegations insufficient. The Notre Dame Study did not identify the mascaras it tested, and the complaint did not state how many mascaras were tested, what percentage contained fluorine, whether fluorine necessarily showed PFAS, or whether Lash Blast or Clump Crusher were tested. The complaint also did not identify the study’s relevant time period.

The commissioned testing did identify PFAS in Lash Blast and Clump Crusher, but the plaintiffs did not allege how many lots or tubes were tested, how pervasive PFAS was, or whether all products in either line tested positive. The court therefore could not determine whether the testing showed widespread contamination or only a single positive tube. The court also found that the plaintiffs had not provided factual support for their theory that degradation, impurities, or standardized manufacturing processes made contamination systemic.

Because the plaintiffs failed to plausibly allege an injury in fact, the court held that they lacked Article III standing. The court did not reach Coty’s remaining arguments under Rules 12(b)(6) and 9(b).

Disposition

The court granted Coty’s Rule 12(b)(1) motion to dismiss. Because the dismissal was based on lack of Article III standing, the court dismissed the complaint without prejudice rather than with prejudice. The court declined to grant leave to amend at that time, but stated that the plaintiffs could move for leave to file another amended complaint if they believed they could plead facts curing the standing problems. The plaintiffs were permitted to make that motion by April 15, 2024. The court also vacated the deadlines in the second amended case-management plan and directed the clerk to terminate Coty’s motion.