Coco Chanel said that nature gives you your face at 20, but you earn your face at 50.  Perhaps that is not so different from Mark Twain’s theory that one’s wrinkles should merely be monuments to smiles.  Those platitudes do nothing to stop people from trying to escape or cover up the effects of aging on our countenances.  It is a big business.  Revlon markets cosmetics under the brand name of “Revlon Age Defying with DNA Advantage.”  It is hard to conceive of anything that is more redolent of puffery.  Nevertheless, plaintiffs brought a class action alleging, essentially, that the marketing of the product is replete with lies.  The court’s decision in Elkind v. Revlon Consumer Prods. Corp., 2015 U.S. Dist. LEXJS 63464 (EDNY May 14, 2015), is the veritable mixed bag. 

The case was brought as a class action alleging false and misleading advertising in violation of N.Y. Gen Bus. Law sections 349 et seq., and Cal. Bus. &Prof Code § 17200 et seq., as well as breach of warranty, unjust enrichment, negligent misrepresentation, and fraud. There is bicoastal ambition behind this lawsuit.  The plaintiffs claim that the product’s name and marketing fooled them and all reasonable consumers into believing that the products would "interact with the skin's DNA, perhaps on a cellular or molecular level, to provide scientifically-enhanced therapeutic benefits that reverse, minimize, slow, or otherwise 'defy' the process of aging.''  The named plaintiffs, who purchased a foundation and concealer from a CVS retail store, understood the product’s name and marketing to suggest "that the products contained something very scientific and special having to do with DNA.”   The plaintiffs alleged that they relied on those misrepresentations at the time of their purchase, and as a result paid more for the products than they otherwise would have.

More specifically, the plaintiffs alleged that the phrase "Age Defying  with DNA Advantage" on the products' labels and in other marketing duped them into believing that the product would favorably interact with their DNA on a molecular level.  The plaintiffs also asserted that because the phrase “Age Defying with DNA Advantage” manifests an intent that the products be used to manipulate the cells, the products are over-the counter drugs, as defined by the Federal Food, Drug, and Cosmetic Act (FDCA).  As such, the products would be mislabeled because they do not comply with the FDCA’s drug labeling requirement that all of a drug’s ingredients be listed, and they therefore violated New York and California laws prohibiting the unlawful sale of products.  The court helpfully breaks down the plaintiffs’ claims into two categories:  “Deceptive Advertising Claims” and “Mislabeling Claims.”

The defendant challenged the plaintiffs’ standing to bring claims for injunctive relief and to bring marketing claims relating to a product the named plaintiffs did not purchase, a powder.  The court agreed with the defendant.  The failure to show a likelihood of continuing harm foreclosed injunctive relief.  Further, there was no Article III standing regarding products that the plaintiff did not purchase.  Because they had not purchased the powder, the plaintiffs had not been injured in the “personal and individual way” required by Article III. 

So much for preliminaries.  Now on to the more interesting preemption analysis.  Both express preemption and implied preemption are relevant here.  The court reasoned that the plaintiffs needed to be suing for conduct that violates the FDCA, or else the  claims would be expressly preempted.  At the same time, the plaintiffs could not be suing because the conduct violated the FDCA, for such a claim would be impliedly preempted under Buckman.  The parties disputed whether the products were subject to the FDCA regulations as cosmetics or as over-the-counter drugs. At first blush (could not resist), this debate seems almost metaphysical.  Does the product make us feel better or look better?  Are the two really completely separable?   Was Roxy Music right when they sang "Love is the Drug"?  The FDCA’s definition of "drug" includes, inter alia, articles "intended for use in the diagnosis, cure. mitigation, treatment, or prevention of disease in man" and articles "intended to affect the structure or any function of the body of man." 21 U.S.C. section 321(g).  By contrast, cosmetics are articles "intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance.” 21 U. S. C. section 321 (i). People are liable to do any crazy thing with a product, particularly a drug or cosmetic.  But the best evidence as to which category applies and what is the intended use of the product is usually found in the product's current and past containers, instructions, and advertisements.

The Elkind court decided not to decide.  (Yes, that still ends up being a decision, and in this case the particular decision is probably wrong.)  Resolving the intended use issue at the early stage of the litigation seemed a bit daunting to the court, so it simply assumed that all of the products were "Drugs” as defined by the FDCA.  The court ruled that the FDCA does not endeavor to regulate -- and therefore does not purport to preempt -- whether certain phrases on the branding of non-prescription drugs are misleading.  Thus, “advertising issues relating to … misleading or deceptive claims are outside the scope of pre-emption.”  That conclusion, to our unadorned eyes anyway, is hardly self-evident.  What seemed to drive the court’s opinion, or at least provide a handy rationale for its conclusion that the plaintiffs’ Deceptive Advertising Claims were not pre-empted, was the lack of any suggestion that the FDA had issued, or might issue, any relevant guidance.  The Elkindcourt drew a contrast with other cases that found preemption when the FDA had issued some sort of a monograph.  It is as if the FDA’s reticence threw open the courthouse door for the plaintiffs. 

But the court reached a different decision with respect to the Mislabeling Claims.  Those claims, according to the court, did not “squeak through the narrow gap through which a plaintiff’s state-law claim must fit if it is to escape express or implied pre-emption.”  Rather, those mislabeling claims arose because the plaintiffs alleged that the powder and concealer violate the FDCA, and prosecuting that violation lies squarely within the province of the FDA.    

The defendant also contended that the court should refrain from entertaining the plaintiffs’ claims as a matter of deference to the FDA, pursuant to the doctrine of primary jurisdiction.  The plaintiffs’ Deceptive Advertising Claims called on the Court to determine whether the phrase “DNA Advantage” is misleading to a reasonable consumer in light of the products’ actual effects.  The court concluded that it was well-equipped to answer that question.  It also discounted the possibility that the FDA might issue guidance conflicting with the court’s ruling, because the parties had not suggested that any relevant FDA ruling or guidance was imminent.  Consequently, the FDA’s silence helped the plaintiffs in fending off primary jurisdiction as well as preemption.

The defendant disputed whether the plaintiffs pled a cognizable injury, but the court was persuaded that it was enough for the plaintiffs to allege that they paid a premium for the product based on the alleged misrepresentations.  The court did not find persuasive the defendant’s argument that the “premium” alleged by the plaintiffs was inadequately pled because it lacked numerical specificity.  Determining the exact cost of the premium recovered due to the alleged misrepresentations would require discovery to which the plaintiffs had not yet been entitled and expert analysis that the plaintiffs were not required to undertake at such an early pleading stage.

The defendant argued that the plaintiffs’ claims for negligent misrepresentation must be dismissed pursuant to the economic loss doctrine.  The economic loss doctrine restricts the remedy of plaintiffs who have suffered economic loss, but not personal or property injury, to an action in contract.  The doctrine applied to the claims for negligent misrepresentation, so they were dismissed.  But the economic loss doctrine did not apply to the plaintiffs’ intentional misrepresentation claim, so they lived to annoy another day. 

The complaint included claims for breach of express warranty under New York and California law.  The court held that “Age Defying with DNA Advantage” could be plausibly inferred to suggest that the product would combat or reverse aging by interacting with one’s DNA.  The court considered such advertising hocus-pocus to be a statement of fact regarding the products’ efficacy, and that such statement of fact was sufficient to constitute an express warranty.  But the implied warranty claims, under both New York and California law, failed for want of privity.  

Finally, the court dismissed the plaintiffs’ claims for unjust enrichment and restitution, because the plaintiffs had failed to demonstrate how those claims were in any way distinct from the contract and tort claims.

As we said, the Elkind opinion is a mixed bag.  Given the subject matter, the bag might be a Chanel, Fendi, or Hermes.  But its contents are still mixed. There are bits we like, and bits we do not like. We have tried to report the results impartially.  It is not as if we wanted to put lipstick on a pig.