Onaka v. Shiseido Americas Corporation

Background

Daian Onaka, Torshia Woods, Sheli Zeller, Margo Ferguson, and Eva Bailey sued Shiseido Americas Corporation individually and on behalf of a proposed nationwide class. They alleged that Shiseido marketed bareMinerals products as “clean” and “natural” while the products contained per- and polyfluoroalkyl substances (PFAS), a group of persistent chemicals. Their claims included warranty, fraud, negligent-misrepresentation, and several state consumer-protection claims.

The plaintiffs claimed economic injury under a price-premium theory: they allegedly paid more for products because they believed the products were “clean” and would not contain PFAS. They did not test their own purchases. Instead, they alleged that independent testing in September and October 2021 found organic fluorine—an indicator of PFAS—in five products from the same product lines as products they had purchased.

Rule 12(b)(1) and standing

Shiseido moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal when the court lacks subject-matter jurisdiction, and Rule 12(b)(6), which addresses failure to state a legally sufficient claim. The court considered the Rule 12(b)(1) challenge first because a lack of jurisdiction would make the remaining arguments unnecessary.

To establish constitutional standing, a plaintiff must plausibly allege an actual injury, a connection between that injury and the defendant’s conduct, and a likelihood that a court decision could remedy the injury. In its earlier decision, the court had explained that the plaintiffs needed facts making it plausible that at least one of them actually purchased a product containing PFAS. Because the plaintiffs relied on testing products from the same lines rather than their own purchases, they also needed to link the testing to their purchases in time and show that PFAS was widespread enough to make it plausible that they had bought a mislabeled product.

Court’s analysis

The court held that the First Amended Complaint did not plausibly establish that any plaintiff purchased a product containing PFAS. First, although the plaintiffs alleged that five products were tested in September and October 2021, they did not identify when they purchased each particular tested product. For example, Onaka allegedly purchased “PFAS Makeup” most recently in September 2021, but that term was defined broadly and was not limited to the five tested products.

Second, the court found that the plaintiffs did not adequately connect their isolated testing results to Shiseido’s products generally. The plaintiffs relied on a study that found fluorine in some cosmetics purchased between 2016 and 2020. The court said the study did not identify the relevant product lines, establish that the same types of PFAS were found, show how the products were selected, or establish that Shiseido used ingredients treated with PFAS. The court rejected the plaintiffs’ argument that the study showed a widespread industry practice, finding that the study only stated that certain ingredients can be treated with PFAS.

Third, the plaintiffs did not allege how frequently they purchased bareMinerals products. The court contrasted their allegations with cases in which repeated purchases during a specified period supported an inference of a likely past injury. The court concluded that the absence of both a timely, meaningful connection between the testing and the plaintiffs’ purchases and allegations of regular purchasing made the claimed injury too speculative.

Disposition

The court concluded that none of the plaintiffs had standing and dismissed the First Amended Complaint without prejudice. It did not reach Shiseido’s remaining arguments, including its request for judicial notice, the possible application of the heightened fraud-pleading rule, and failure to state a claim under Rule 12(b)(6).

The conclusion states that Shiseido’s motion to dismiss was granted without prejudice. The court denied Shiseido’s request for oral argument and gave the plaintiffs 21 days to file a Second Amended Complaint. The Clerk was directed to close the motion at ECF No. 48.