United States: Nutty Cosmetic Class Crushed

Last Updated: January 17 2019
Article by Eric Alexander

We may not know much about skin care, but we know a thing or two about labeling claims. Whether for a drug, a device, a food, a cosmetic, or some other product, it is necessary to apply some common sense in determining what is or is not in a product's labeling should give rise to liability. The court in Browning v. Unilever U.S., Inc., No. SACV 16-02210, 2018 WL 6615064 (C.D. Cal. Dec. 17, 2018), applied a healthy dose of common sense in granting summary judgment for the defendant against consumer fraud and warranty claims by a purported of deceived purchasers. The product at issue was St. Ives Apricot Scrub and allegations centered on the presence in the product of a powder from the crushed shells of walnut to lend exfoliating power to the scrub. We will try to keep the nuttiness to a minimum as we discuss the decision.

The court's introduction gets to the kernel of the dispute:

This "Scrub" is an exfoliant and like all such products is necessarily abrasive. Plaintiffs claim that the Scrub causes "micro-tears" and speeds up the aging process. Plaintiffs allege Unilever failed to disclose the scrub's negative side effects before selling it to the public and misled consumers into believing it was dermatologist recommended.

Id. at *1. Before we crack into the analysis, we have a little detour into some things not really spelled out in the decision. This is probably obvious, but the scrub is used by gently rubbing it into the skin on your wet face and then washing it off. Under the directions section on the tube of scrub are the ingredients section, which lists "Juglans Regia (Walnut) Shell Powder" right after water. For those who are curious, these shells come from one of twenty-one species of walnuts. If a reader or potential consumer were curious enough to look at the website for the product, then it would not be hard to see that Walnut Shell Powder is identified as the second "key ingredient" of the product (after apricot extract) and that the "exfoliation factor" of the product is characterized as "deep." With that extra-judicial context, we get back to the meat of the decision. (OK, we will stop with the gratuitous nut references.)

We will start with the second of plaintiffs' basic claims, that the label was misleading in saying it was "Dermatologist Tested." Plaintiffs claimed that statement somehow suggested the product was "recommended" or "approved" by dermatologists, but they acknowledged that the product was tested by dermatologists and the court could read. Id. at *4. So, plaintiffs went to a back-up argument that references to testing were misleading without disclosing an alleged risk of the product. That brings us to the first argument.

The first argument was that the walnut shell powder made the product too abrasive and caused indiscernible micro-tears in the skin that increase the incidence of acne, infection, and wrinkles, which in turn make the skin of users look older faster. Because this was in the posture of summary judgment, plaintiffs actually offered up evidence like expert declarations, deposition testimony, and even published articles and a study done for litigation by their retained expert. Viewed in a light favorable to plaintiffs, this evidence "at best show[s] that St. Ives Scrub could, in theory, alter the skin's surface." Id. at *3 (emphasis in original). However, under California law, "the alleged unreasonable safety hazard must describe more than merely conjectural and hypothetical injuries." Id. (internal citation and quotation omitted). Plaintiffs did not show "that the alleged microtears are a safety hazard" and their experts did not contend the product was "dangerous." Id. So, no injury.

They also did not prove causation: "Evidence is lacking that St. Ives, and not other products or lifestyle or sun damage or any other factor, produced acne, wrinkles, inflammation, or loss of moisture (even if these were actionable safety hazards)." Id. The court considered the consumer complaints offered by plaintiffs to say nothing about causation, especially because they occurred at a low frequency. Id. The court also was not impressed by the plaintiffs' for-litigation study: "Plaintiff's short-term clinical study does little to advance Plaintiff's causation theory or prove their allegations of longer-term skin conditions." Id. Bringing the evidence back to the context of alleged omissions of unreasonable safety hazards of the product from labeling, the court stated:

Again, Plaintiffs haven't shown that micro-tears themselves (as distinct from potential resulting symptoms, such as wrinkles or acne) are counter to the product's central function. Indeed, the Scrub was marketed as an exfoliant (Mot. at 25), which implies some intended resurfacing or abrasion. Plaintiffs do not address this issue or offer a description of the central function of a facial exfoliant. There is far too little for a reasonable jury to conclude that the presence of walnut shells neuters that undefined function.

Id. Contraction notwithstanding, we think this is fine analysis. As noted above, a little broader look would indicate that this product was not just marketed as an exfoliant, but one for deep exfoliation with the ground up walnut shells as a key ingredient. People who might want to use a scrub—any scrub, pre-packaged or homemade—might consider in advance whether scrubbing the skin on their face with something with sufficient grittiness to accomplish a scrubbing is what they want. That is not really a labeling issue.

To cap it off, the purported class reps did not have any injuries. They just "assume[d] they suffered from micro-tears which they could neither see nor feel." Id. at *4. We have seen uninjured class reps before and the need for a cognizable present injury clearly applies in a range of contexts, including medical monitoring and consumer fraud. There is nothing nutty about that requirement.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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