A judge in the Northern District of California recently held that a purchaser of eye makeup allegedly containing eye irritants lacked standing to pursue her claims—given that the product was not banned by the FDA and did not actually harm her eyes.

In Wilson v. ColourPop Cosmetics, LLC, 2023 WL 2023 WL 6787986 (N.D. Cal. Sept. 7, 2023), the plaintiff on behalf of a putative class alleged that she had purchased eye makeup, such as eyeshadow and eyeliner, containing various color additives, including “FD&C Red No. 4” and “D&C Brown No. 1.”  Id. at *1.  The complaint alleged that those ingredients “can cause physical injuries, including eye pain, skin irrigation, skin tanning, and damage through their toxicity when they enter the body.”  Id.  Plaintiff was unaware of the dangerous nature of these ingredients when she purchased the products and alleged that she “would not have purchased them” had she known about them.  Id. at *2.  Plaintiff did not, however, allege that she was physically injured in any manner from using the products.  Id.

The defendant argued that because the FDA had not banned the use of those additives in eye makeup, and because plaintiff suffered no physical injury from those additives, she lacked Article III standing.  Id. at *4–5.  The court agreed.  Id.  It held that because Plaintiff “neither plausibly alleged that she suffered any injuries the Harmful Ingredients can cause, nor has she shown there is a high probability, or any for that matter, that injury will imminently occur in the future,” any physical injuries are purely speculative—and so do not rise to the level required for Article III standing.  Id. at *5.  It further held that “the FDA is responsible for making that determination” of whether such products are illegal to sell, but it had not banned this product.  Id. For that reason, plaintiff’s allegation that the products “are unsafe is not a fact, but rather, is conclusory in nature.”  Id. at *4.  Likewise, because plaintiff was not physically injured by the products (and presumably used them for their intended purpose without issue), she received the benefit of her bargain.  Id. at *5. 

The Wilson v. ColourPop Cosmetics decision is one of many in the past decade grappling with the following question: “If a product contains a contaminant but no one gets sick, did it cause an injury?”  We previously wrote in depth about this issue, reviewing similar cases across the country.  There, we noted that at least some courts in the Ninth Circuit had allowed cases fitting this mold to survive a motion to dismiss, such as where the plaintiff alleged injury from using a prenatal vitamin contaminated with heavy metals—without any physical injury.  Barnes v. Nat. Organics, Inc., 2022 WL 4283779, at *4 (C.D. Cal. Sept. 13, 2022); see also In re Plum Baby Food Litigation, 2022 WL 16640802, at *1 (N.D. Cal. Jan. 12, 2022) (holding that plaintiffs adequately alleged an injury in fact by claiming they would not have paid the purchase price for baby food had they known the products contained heavy metals).

This more recent decision demonstrates that this issue remains unsettled in the Ninth Circuit.  Our prior observation remains true: Judges across the country remain divided on this issue.

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Andrew Soukup is a co-chair of the firm’s Class Action Litigation Practice Group. Andrew specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has

Andrew Soukup is a co-chair of the firm’s Class Action Litigation Practice Group. Andrew specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a variety of advertising, consumer protection, privacy, and product defect and safety claims ranging in exposure from millions to billions of dollars. Based on his “proven record,” Andrew has been recognized as an “attorney you want on your side in a bet-the-company case.”

Andrew’s clients include those in the consumer products, life sciences, financial services, technology, automotive, and media and communications industries. He has helped his clients prevail in litigation in federal and state courts across the country against putative class representatives, government agencies, state attorneys general, and commercial entities.

With a long history of representing companies subject to extensive federal regulation and oversight, Andrew provides a unique ability to help courts understand the complex environment that governs clients’ businesses. Clients turn to Andrew because of his successful outcomes at all stages of litigation, his responsiveness and attention to their matters, his understanding of their businesses, and his creative strategies.

Andrew’s recent successes include:

  • Leading the successful defense of several of the world’s leading companies and brands from claims that they engaged in deceptive marketing or sold defective products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Defeating claims against one of the nation’s leading consumer products companies in industry-wide, multidistrict class-action litigation challenging the company’s marketing and advertising of over-the-counter medicine containing allegedly ineffective ingredients, which earned Andrew recognition by American Lawyer as a “Litigator of the Week.”
  • Delivering wins in multiple nationwide class actions on behalf of leading financial institutions related to fees, disclosures, and other banking practices, including the successful defense of numerous financial institutions accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recognition as a “Class Action Group of the Year.”
  • Helping several of the world’s largest seafood companies defeat ESG-related claims accusing them of misrepresenting their practices.

Andrew has also obtained favorable outcomes for numerous clients in commercial and indemnification disputes raising contract, fraud, and other business tort claims. He helps companies navigate contractual and indemnification disputes with their business partners. And he advises companies on their arbitration agreements, and has helped numerous clients avoid multi-district and class-action litigation by successfully enforcing their arbitration agreements.

Watch: Andrew provides insights on class action litigation, as part of our Navigating Class Actions video series.