Kandel v. Dr. Dennis Gross Skincare, LLC

Background

Jami Kandel filed a putative class action against Dr. Dennis Gross Skincare, LLC. She alleged that the company’s “C + Collagen” skincare products were labeled, packaged, and advertised in a way that led reasonable consumers to believe the products contained collagen, although they did not. Kandel purchased the “C + Collagen Serum” in New York in 2022 for approximately $78. She alleged that she relied on the product’s labeling and paid a price premium because of the alleged collagen representation.

The products displayed “C + Collagen” on their packaging and advertising. Their packaging also listed “Collagen Amino Acids” and included a vegan symbol. Kandel alleged that collagen comes only from animals and that a product containing collagen could not be vegan. She brought claims under New York General Business Law §§ 349 and 350, for breach of express and implied warranties, and for unjust enrichment. She sought to represent a New York subclass and a nationwide class.

Gross Skincare moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal for failure to state a legally sufficient claim.

New York Consumer-Protection Claims

The court denied the motion to dismiss Kandel’s claims under New York General Business Law §§ 349 and 350. Those laws prohibit deceptive business practices and false advertising. To state such claims, Kandel had to plausibly allege consumer-oriented conduct that was materially misleading and caused her injury.

The court held that Kandel plausibly alleged that the packaging could mislead a reasonable consumer into believing that the products contained collagen. The phrase “C + Collagen” could reasonably be understood as meaning that the products contained vitamin C and collagen. The references to “collagen amino acids” did not clearly correct that impression because the packaging did not explain the difference between collagen and “collagen amino acids.” The vegan symbol also did not resolve the issue at the pleading stage because consumers would have to make several assumptions about collagen, animal-derived ingredients, and the meaning of the symbol.

The court also held that Kandel adequately alleged economic injury and causation by claiming that the allegedly misleading representation caused her and the putative class members to pay a price premium. The court therefore denied the motion to dismiss the claims brought for the New York subclass.

Nationwide Warranty and Unjust-Enrichment Claims

The court dismissed without prejudice Kandel’s breach-of-warranty claims. Under New York law, a buyer generally must give the seller timely notice of an alleged warranty breach. Kandel alleged only economic injury and did not allege that she notified Gross Skincare of the alleged breach before filing the complaint. The court therefore found that she had not adequately pleaded the warranty claims.

The court also dismissed without prejudice the unjust-enrichment claim. It found that the claim relied on the same facts as Kandel’s other claims and that she did not explain how it differed from those claims. Under New York law, unjust enrichment cannot simply duplicate another contract or tort claim.

The court further granted Gross Skincare’s motion as to the alternative nationwide allegations based on the consumer-protection laws of the fifty states and the District of Columbia. Kandel had listed those laws but had not provided facts explaining how they differed or how Gross Skincare violated each one.

Products Kandel Did Not Purchase

Kandel purchased only one of the five products. The court rejected Gross Skincare’s argument that she therefore could not assert class claims involving the other four products. At the pleading stage, the court held, a plaintiff may assert claims concerning unpurchased products when the products are substantially similar and carry the same alleged misrepresentation.

The court found that all five products used the same “C + Collagen” representation, were allegedly void of collagen, were sold at a price premium based on that representation, and were produced, labeled, packaged, and advertised by Gross Skincare. The court therefore denied dismissal on this ground.

Other Rulings and Disposition

The court granted Kandel leave to amend the breach-of-warranty and unjust-enrichment claims. The final disposition states that Gross Skincare’s motion to dismiss was GRANTED IN PART and DENIED IN PART. The nationwide warranty and unjust-enrichment claims were dismissed without prejudice, while the motion was otherwise denied. Kandel could file an amended complaint by March 26, 2024; if she did not, those claims would be dismissed with prejudice. The court denied Gross Skincare’s request for oral argument as moot. The court also denied Kandel’s request to strike certain materials as moot.