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May 2020

Class Action Defense Team Defeats Another Consumer Product Case In Precedential Appellate Victory

Miles Scully and his class action defense team of Peter Siachos, Justin Lewis, and JoAnna Doherty have scored another victory that will benefit every maker of food, drugs, and cosmetics sold at retail. Plaintiffs from eight states claimed they could not dispense the full labeled quantity of thick, viscous makeup from the pump bottles in which L’Oréal packaged multiple lines of cosmetics. They sought to represent a nationwide class of all who purchased the products. Their suit alleged that without a disclaimer about the potential goopy residue, the bottles ran afoul of various consumer protections imposed by state law.

However, in a new precedential opinion on federal preemption of state law, the U.S. Court of Appeals for the Second Circuit has now ruled that the plaintiffs’ lawsuit was an illegal attempt to impose state law obligations concerning the labeling of cosmetics that differ from federal labeling requirements. Federal law merely requires cosmetic labels to bear the packaging’s net quantity, but the lawsuit wielded a supposed state law requirement that the labeling tell consumers that some sticky residue might stay behind.

Siding with L’Oréal and Gordon & Rees, the Second Circuit made clear that plaintiffs’ case violates the federal Food, Drug and Cosmetic Act ("FDCA"), which expressly preempts any state law requirements that differ from federal law. The court’s vindication of the FDCA’s broad preemption provision will prove useful to manufacturers facing claims that their food, drugs, or cosmetics violate a wide array of purported state law requirements that do not appear in the FDCA or the FDA’s complex regulations. Such suits have grown to a major focus of the class action plaintiffs’ bar in recent years.

The ruling affirmed the same Gordon & Rees team’s earlier victory on the preemption defense in U.S. district court in New York City. There, Scully and his team also won the case’s complete dismissal on grounds that the plaintiffs’ claims were facially implausible. The district court agreed with the defense that reasonable consumers know from common experiences with personal care products of a thick consistency that some residue may stick to the container or take effort to access. The Second Circuit’s decision left that ruling in place as good law that will assist manufacturers facing challenges to their products’ packaging or containers.

The Second Circuit’s decision is Critcher v. L’Oréal USA, Inc., No. 19-2474-cv, 2020 U.S. App. LEXIS 14877. The district court victory is Critcher v. L’Oréal USA, Inc., No. 18-cv-5639 (JGK), 2019 U.S. Dist. LEXIS 116365.

JoAnna M. Doherty
Justin D. Lewis
Miles D. Scully
Peter G. Siachos