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From Health Law Daily, October 24, 2017

'100% natural' labeling on cosmetic products could confuse reasonable consumer

By Sheryl Allenson

Applying a reasonable person standard, a federal district court in California found that products labeled as "100 % natural mineral hydrating defense" and "100% natural mineral advanced protection" phrases could confuse a reasonable person and therefore denied Kiss My Face (KMF)’s motion to dismiss claims alleging false and misleading labeling. On the other hand, labelling that included the terms "obsessively natural kids" and "nourish naturally with our botanical blends" were not likely to deceive a reasonable consumer and, as such, statutory claims based on those phrases were dismissed (Glasser v. Kiss My Face, LLC, October 23, 2017 Corley, J).

Labels. Purported class representatives filed a multi-count complaint against KMF based on the labeling found on four of KMF’s cosmetic products. The front label of a lotion and a body wash state that they "nourish naturally with our botanical blends" and some also include labeling stating that the products are "naturally nourishing. The sunscreen has a front label that states "obsessively natural kids" and the sun spray is labeled "100% natural mineral hydrating defense" Both the sunscreen and sun spray notes that they are "100% natural mineral advanced protection" and "100% natural mineral hydrating defense." Despite the emphasis on natural ingredients, the products contained the synthetic ingredients of phenoxyethanon and/or ethylhexylgcerin.

Injunctive relief denied. The court found that the purported class could not establish standing for their claim for injunctive relief because they did not show risk of future harm. Specifically, the complaint failed to allege that they would purchase the product again even if it was properly labelled, and instead they alleged that they would purchase another product without the synthetic ingredients. In this instance, the injunctive relief sought was to alter the labeling, not alter the product.

Language matters. KMF claimed that the statutory claims should be dismissed because the complaint failed to allege a plausible deception under the reasonable consumer standard, that labeling was puffery, and that the claims lacked specificity. In its review of the reasonable consumer standard, the court broke its analysis down by each of the labeling phrases. With respect to the labels "100% natural mineral advanced protection" and "100% natural mineral hydrating defense," the court found itself unable to conclude as a matter of law that the reasonable consumer would interpret these statements as anything other than representing that all the ingredients in the products were natural. The court denied KMF’s motion to dismiss the misrepresentation claims as to those two label statements.

However, the court granted that motion with respect to the statements "nourish naturally with our botanical blends," and "obsessively natural kids," finding that the plaintiffs filed to allege facts sufficient to plausibly show that a reasonable consumer would interpret the statements to mean there was no synthetic ingredients added. However, the latter statements were not mere puffery.

Express warranty. The complaint alleged that the statement "100% natural mineral advanced protection" is a breach of express warranty because it is a description of the product and that it was part of the bargain, such that consumers would not have bought the product if they knew it contained synthetic ingredients. KMF also moved to dismiss the express warranty claims. Once again, the court bifurcated its ruling based on the statements made.

Applying the same reasoning used relating to reasonable consumers the express warranty claims on the terms "nourish naturally with our botanical blends" and "obsessively natural kids," the court found that no reasonable consumer would find these statements to mean there were only natural products. The court took note of KMF’s argument that they did not receive required pre-suit notice. Although the court acknowledged the alleged specific notice given in the pleadings for this motion, those allegations and notices were not included in the complaint and therefore could not be considered on a motion to dismiss. Thus, as to this statement, the court granted the motion to dismiss the claim for breach of express warranty, with leave to amend. The court also denied the motion to dismiss the unjust enrichment claim.

The case is No.17-cv-01675-JSC.

Attorneys: Joel Dashiell Smith (Bursor & Fisher, PA) for Andrew Gasser. Angela Lee Diesch (Diesch Forrest, APC) for Kiss My Face, LLC.

Companies: Kiss My Face, LLC

MainStory: TopStory CaseDecisions FDCActNews CosmeticNews LabelingNews MisbrandingNews CaliforniaNews

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