Elkind v. Revlon Consumer Prods. Corp.

• Decision Date: 14 May 2015
• Docket Number: 14-CV-2484(JS)(AKT)
• Parties: ANNE ELKIND and SHARON ROSEN, on behalf of themselves and all others similarly situated, Plaintiffs, v. REVLON CONSUMER PRODUCTS CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of New York

ANNE ELKIND and SHARON ROSEN, on behalf of themselves and all others similarly situated, Plaintiffs, v. REVLON CONSUMER PRODUCTS CORPORATION, Defendant.

14-CV-2484(JS)(AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

May 14, 2015

MEMORANDUM AND ORDER

APPEARANCES

For Plaintiffs:

John Joseph Fitzgerald IV, Esq.

Thomas A. Canova, Esq.

Tran H. Nguyen, Esq.

Trevor Flynn, Esq.

Law Office of Jack Fitzgerald, PC

3636 Fourth Ave, Suite 202

San Diego, CA 92103

Ronald A. Marron, Esq.

Skye Resendes, Esq.

Law Offices of Ronald A. Marron

651 Arroyo Drive

San Diego, CA 92103

For Defendant:

Patricia Glaser, Esq.

Sean Riley, Esq.

Glaser Weil

10250 Constellation Blvd, 19th Fl.

Los Angeles, CA 90067

Jill Caroline Barnhart, Esq.

Nelson A. Boxer, Esq.

Petrillo Klein & Boxer LLP

655 Third Ave, 22nd Fl.

New York, NY 10017

SEYBERT, District Judge:

Plaintiffs Anne Elkind and Sharon Rosen (together, "Plaintiffs") commenced this putative class action on behalf of themselves and others similarly situated against defendant Revlon Consumer Products Corporation ("Defendant" or "Revlon"), alleging, inter alia, false and misleading advertising in violation of the New York General Business Law, N.Y. GEN. BUS. LAW § 349 et seq., and the California Business and Professional Code, CAL. BUS. & PROF. CODE § 17200 et seq.; breach of warranty; unjust enrichment; negligent misrepresentation; and fraud.

Pending before the Court is Revlon's motion to dismiss for failure to state a claim, or, in the alternative, to strike portions of Plaintiffs' First Amended Complaint. (Docket Entry 18.) For the following reasons, Defendant's motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND¹

I. The Products

Revlon markets, advertises, and sells three types of cosmetics under the brand name "Revlon Age Defying with DNA Advantage." (Am. Compl., Docket Entry 12, ¶ 1.) The three types of cosmetics are a cream makeup ("Foundation"), a powder("Powder"), and a concealer ("Concealer" and together with the Foundation and the Powder, the "Products"). (Am. Compl. ¶¶ 1, 15.) The phrase "Age Defying with DNA Advantage" is prominently featured on the Products and their packaging. (Am. Compl. ¶ 16.) The Products' dress also contain a silhouetted "double-helix" shape often associated with the structure of DNA. (Am. Compl. ¶ 17.) In-store displays of the Products state that the Products "[h]elp[ ] protect the skin's DNA to fight signs of aging." (Am. Compl. ¶ 19.)

According to Plaintiffs, the phrase "Age Defying with DNA Advantage," together with the invocation of the double-helix silhouette and the in-store claim that the Products "[h]elp[ ] protect the skin's DNA to fight signs of aging" suggest that the Products work to retard aging by manipulating the DNA in skin cells. (Am. Compl. ¶¶ 24-25.) Specifically, Plaintiffs allege that these statements led them (and would lead a reasonable consumer) to believe 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." (Am. Compl. ¶ 2.)

Elsewhere, Revlon bolsters its claims of the Products' age-defying effects. For example, Revlon's 2012 annual report described the Products as "help[ing to] protect the skin's DNA andfight visible signs of aging." (Am. Compl. ¶ 21.) Revlon's website states that the Foundation contains "powerful anti-aging skincare to help protect skin's DNA to fight the visible signs of aging." (Am. Compl. ¶ 20.) Revlon has also registered the phrase "DNA Advantage" with the United States Trademark Office. (Am. Compl. ¶ 26.) The phrase, according to Revlon, refers to "an ingredient used in cosmetics and makeup to protect against UV rays." (Am. Compl. ¶ 26.) Notably, however, the Foundation is the only one of the Products that contains ingredients known to give products a Sun Protection Factor ("SPF"). (Am. Compl. ¶ 30.)

Plaintiffs further allege that the Products are incapable of functioning in the manner that their labeling suggests. Each of the Products, Plaintiffs allege, is composed of at least some the following ingredients: niacinamide, sodium hyaluronate, ceramide complex, cottonbloom extract, and acerola extract. (Am. Compl. ¶ 31.) The Foundation also contains the additional sunscreen ingredients octinoxate and titanium dioxide. (Am. Compl. ¶ 32.) According to Plaintiffs "none of the[se] ingredients . . . is capable of stimulating, interacting with, or otherwise affecting the DNA in human skin cells, as Revlon's advertising suggests." (Am. Compl. ¶ 34.)

II. The Plaintiffs

Plaintiff Anne Elkind purchased the Foundation and the Concealer from a CVS retail store in Roslyn Heights, New York.(Am. Compl. ¶ 22.) Plaintiff Sharon Rosen purchased the Foundation and Concealer from either a Wal-Mart in Sacramento, California or an Ulta in Elk Grove, California. (Am. Compl. ¶ 23.)

Both Plaintiffs allege that they saw the phrases "Age Defying [with] DNA Advantage" and "[H]elps protect skin's DNA to fight signs of aging" on the Products themselves, the in-store display, and certain unnamed periodical advertisements. (Am. Compl. ¶ 24.) Plaintiffs allege that they understood the phrases to suggest "that the products contained something very scientific and special having to do with DNA." (Am. Compl. ¶ 24.) Plaintiffs allege 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. (Am. Compl. ¶¶ 68-69.)

Plaintiffs do not allege to have seen, prior to their purchase, the statements contained on Revlon's website or in Revlon's annual report. (Am. Compl. ¶ 24.)

III. The Claims

From these facts, Plaintiffs assert fifteen causes of action: (1) false advertising in violation of New York General Business Law § 349; (2) false advertising in violation of New York General Business § 350; (3) negligent misrepresentation; (4) intentional misrepresentation; (5) unfair competition in violation of the California Business and Professional Code § 17200 et seq.; (6) false advertising in violation of the CaliforniaBusiness and Professional Code § 17500 et seq.; (7) violation of the California Civil Code § 1750 et seq.; (8) breach of express warranty under New York law; (9) breach of implied warranty of merchantability under New York law; (10) breach of implied warranty of fitness under New York law; (11) breach of express warranty in violation of the California Commercial Code; (12) breach of implied warranty of merchantability in violation of the California Commercial Code; (13) breach of implied warranty of fitness in violation of California Commercial Code; (14) unjust enrichment; and (15) restitution.

Broadly speaking, Plaintiffs' claims fall along two general lines of argument. First, Plaintiffs allege that Defendant's using 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. These allegations form the basis of Plaintiffs' second, third, fourth, sixth, and seventh through thirteenth causes of action. Second, 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, 21 U.S.C. § 301 et. seq. (the "FDCA"). And as such, the Powder and Concealer are mislabeled because they do not comply with the FDCA's drug labeling requirement that all of a drug's ingredientsbe listed, and they therefore violate New York and California laws prohibiting the unlawful sale of products. These allegations form the basis of Plaintiffs' first and fifth causes of action. For simplicity's sake, the Court refers to those of Plaintiffs' claims that fall along the former line of argument as Plaintiffs' "Deceptive Advertising Claims" and those adopting the latter argument as Plaintiffs' "Mislabeling Claims."

DISCUSSION

Defendant challenges Plaintiffs' standing to bring claims for injunctive relief and to bring claims arising out of the marketing of the Powder. Because standing is a jurisdictional matter, Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975), the Court considers those arguments before considering the merits of Defendant's motion to dismiss.

I. Standing

A. Injunctive Relief

In addition to monetary damages, Plaintiffs seek an order enjoining Revlon from selling the Products. (Am. Compl. ¶ 174.) Because they have not alleged any likelihood of continuing or future harm, however, Plaintiffs lack standing to seek this form of equitable relief.

"[W]hen seeking prospective injunctive relief, the plaintiff must prove the likelihood of future or continuing harm." Pungitore v. Barbera, 506 F. App'x 40, 41 (2d Cir. 2012) (summaryorder) (emphasis in original) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S. Ct. 1660, 1670, 75 L. Ed. 2d 675 (1983)). Plaintiffs have not done so here. That Plaintiffs have been injured by their prior purchase of the Products is insufficient, as "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief." O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S. Ct. 669, 676, 38 L. Ed. 2d 674 (1974). Moreover, Plaintiffs are now aware of the alleged misrepresentations that they challenge, so there is no danger that they will again be deceived by them. See generally Tomasino v. Estee Lauder Cos. Inc., 44 F. Supp. 3d 251 (E.D.N.Y. 2014); Nicosia v. Amazon.com, Inc., --- F. Supp. 3d ----, 2015 WL 500180, at *10 (E.D.N.Y. 2015).²

Accordingly, because the Amended Complaint fails to establish any likelihood of future or continuing harm, injunctive relief is inappropriate here.

B. Products Not Purchased

Though they allege to have purchased only the Foundation and the Concealer, Plaintiffs bring claims arising from ...