Reid v. GMC Skin Care U.S. Inc.
| Decision Date | 15 January 2016 |
| Docket Number | 8:15-CV-277 (BKS/CFH) |
| Parties | ELIZA REID and TRACY WATERS, on behalf of themselves and all others similarly situated, Plaintiffs, v. GMC SKIN CARE USA INC. d/b/a G.M. COLLIN, Defendant. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES:
For Plaintiffs
Faruqi & Faruqi, LLP
Antonio Vozzolo, Esq.
369 Lexington Avenue, 10th Floor
New York, New York 10017
The Law Offices of Ronald A. Marron
Ronald A. Marron, Esq.
651 Arroyo Drive
San Diego, California 92103
Nicholas & Tomasevic, LLP
Craig M. Nicholas, Esq.
Alex M. Tomasevic, Esq.
San Diego, California, 92101 Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDERPlaintiffs Eliza Reid and Tracy Waters bring this proposed class action against defendant GMC Skin Care USA Inc., doing business as G.M. Collin, ("Defendant"), seeking compensatory and injunctive relief for Defendant's allegedly false and misleading marketing and sale of its Phyto Stem Cell+ line of anti-aging skin care products. Dkt. No. 1. Plaintiffs assert claims on behalf of themselves and others similarly situated who purchased the Phyto Stem Cell+ products alleging: violation of the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. § 2301, et seq. (Count 1); breach of express warranty (Count 2); breach of implied warranty of merchantability (Count 3); unjust enrichment (Count 4); violation of California's Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq. (Count 5); California's False Advertising Law, Cal. Bus & Prof. Code §§ 17500 et seq. (Count 6); California's Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq., (Count 7); the Washington Consumer Protection Act, RCW §§ 19.86 et seq., (Count 8); and violation of the consumer fraud statutes of each of the fifty states (Count 9).1
Defendant moves to dismiss (Dkt. No. 16) the complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that: (1) Plaintiffs lack standing to pursue the majority of their claims; (2) Plaintiffs' cosmetic and drug misbranding claims are expressly or impliedly preempted by the Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 301 et seq., and should be referred to the Food and Drug Administration under the doctrine ofprimary jurisdiction; and (3) the allegations in the complaint fail to meet, inter alia, the particularity requirements of Rule 9 of the Federal Rules of Civil Procedure. Dkt. No. 16. Plaintiffs oppose Defendant's motion. Dkt. No. 19. For the following reasons, Defendant's motion to dismiss is granted in part and denied in part.
Defendant manufactures and sells the Phyto Stem Cell+ line of products, including Phyto Stem Cell+ serum, gel-cream, cream, eye contour cream, and mask, which retail from approximately $50.00 to $136.00 per unit. Dkt. No. 1, ¶¶ 1, 22. The Phyto Stem Cell+ line's labels and marketing materials claim that the products contain plant stem cells and that they "reverse the aging process," reduce wrinkles, enhance skin elasticity, and improve cellular metabolism "resulting in [a] DNA repair effect." Dkt. No. 1, ¶ 24.
Plaintiff Eliza Reid, a resident of California, purchased the Phyto Stem Cell+ eye contour cream for approximately $50.00 from a Walgreens store in California in or around February 2014. Dkt. No. 1, ¶ 8. Plaintiff Tracy Waters, a resident of Washington, purchased the Phyto Stem Cell+ eye contour cream for approximately $65.00 on Amazon.com in or around March 2013. Dkt. No. 1, ¶ 7. Both Reid and Waters "purchased the [eye contour cream] in reliance on Defendant's misrepresentations, including those found on the product labeling . . . or in various advertisements and promotional materials." Id. at ¶¶ 7, 8. Plaintiffs "paid a significant premium because of the false and misleading claims [they] relied upon." Id. They found, however, that theproduct "was worthless (and certainly worth less than its representations suggested), and . . . would not have purchased [the eye contour cream] if [they] had known that the claims on the labels were false, misleading, and misbranded." Id. Plaintiffs do not claim to have purchased any other product in the Phyto Stem Cell+ line of products.
According to the complaint, the Phyto Stem Cell+ line's packaging and marketing materials inform consumers that: "As we age, the epidermal stem cells responsible for the formation of new healthy skin cells are significantly reduced and their action becomes less efficient" and that "Plant stem cells regulate the activity and vitality of the epidermal stem cells and genes, resulting in increased skin cell longevity and formation." Dkt. No. 1, ¶ 33. Defendant's products feature "the double helix design [of DNA] alongside the claims that Stem Cell Products will 'Reverse the Signs of Aging' and 'help reverse the aging process.'" Dkt. No. 1, ¶ 31.
Plaintiffs included a copy of the Phyto Stem Cell+ eye contour cream packaging in the complaint. Dkt. No. 1, ¶ 34. It states: "This advanced anti-aging eye contour cream moisturizes, soothes and visibly improves the firmness of the skin and the appearance of dark circles, puffiness, wrinkles and fine lines" and "visibly improves the overall appearance of the eye area." Id. It further states:
Dkt. No. 1, ¶ 34. The complaint also contains a copy of the Phyto Stem Cell+ cream packaging, which states:
According to its website, Defendant G.M. Collins is "an unequivocal leader in innovative skin care solutions by continually offering the highest quality, clinically proven, scientifically advanced preparations in both our unique, cost effective, pre-dosed clinical formulations." Dkt. No. 1, ¶ 9. Defendant's website further claims that its products are developed internally by "[a] team of highly skilled scientists," who select "only ingredients that have been proven safe and effective, and us[e] them in optimal doses for the aesthetic conditions they are to treat." Id.Defendant's website also states that: "This advanced anti-aging skin care collection with PLANT STEM CELLS, specifically formulated to suit the needs of all skin types, improves the appearance of fine lines and wrinkles, visibly enhances skin elasticity and provides a rejuvenating effect to the skin." Dkt. No. 1, ¶ 26.
The complaint includes screen shots from the webpages for the serum, cream, gel-cream, and eye contour cream as well as a screen shot showing the "Synergistic Effect," that may be "obtained with the application" of the serum, cream, and eye contour cream. Dkt. No. 1, pp. 9-11. The screen shots contain before and after pictures and purport to show a 26 to 97 percent reduction in wrinkles "after 28 days" with the use of Phyto Stem Cell+ products. Id. According to the complaint, the Phyto Stem Cell+ product line "employs a design of intertwined double-stranded molecules, which is immediately recognizable as the 'double helix design of DNA.'" Dkt. No. 1, ¶ 29.
Plaintiffs contend that Defendant's claims that the Phyto Stem Cell+ products reverse the signs of aging and repair DNA are false and misleading because it is "scientifically impossible for plant stem cells to interact with human skin cells in a way that would reduce the effects of aging," and that "there is no possible way that any ingredient applied to the skin can repair past DNA damage." Dkt. No. 1, ¶¶ 44, 47. Plaintiffs cite several professors and scientists, as well as excerpts from magazine, newspaper, and online articles in support of their assertion that Defendant's claims are false and misleading. For example, according to the complaint: Paolo U. Giacomoni, the former executive director of research at Estee Lauder and the recipient of "a Laurea in Atomic Physics from the University of Milan and a Ph.D. in Biochemistry from theUniversity of Paris," has been "critical of the role of stem cells in cosmetics," and has stated that "[s]tem cell technology is still far from biomedical applications, let alone cosmetic ones." Dkt. No. 1, ¶ 41. Further, "a leading Professor of Botany at Oxford University was quoted by The Daily Mail saying, 'I don't see how plant stem could interact with human stem cells in this way,'" id. at ¶ 43, and Dr. Waleed Ezzat, M.D., a facial reconstructive surgeon at the Boston Medical Center, was quoted by Boston Magazine as saying, Id.
Plaintiffs also challenge Defendant's claim that its products can repair genes and have a "DNA repair effect," and assert that Leonard Guarente, Ph.D., an MIT biologist and genetic researcher, stated that "No known substance...
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