SAN FRANCISCO (Legal Newsline) – Cosmetics company Kiss My Face (KMF) has filed a motion to dismiss a class action lawsuit that accuses the company of falsely advertising some of its cosmetics as “natural.”

The first amended complaint, filed by Andrew Gasser and later joined by Noriko Ikeda and Melinda Kelly on behalf of themselves and all others similarly situated, was filed on June 9 with the U.S. District Court for the Northern District of California. The plaintiffs allege that by marketing some of its body lotion, body wash and sunscreen products as “natural” despite the presence of phenoxyethanol and/or ethylhexylglycerin, KMF is guilty of misleading consumers.

The plaintiffs claim liability, negligent misrepresentation, breach of the express warranty, unjust enrichment and fraud and seek injunctive relief.

In the motion to dismiss, filed June 30, the defendant addresses the plaintiffs’ request for injunctive relief, arguing that they lack standing. 

“To demonstrate standing for injunctive relief, a plaintiff must demonstrate not just ‘past exposure to illegal conduct’ but also a ‘real and immediate threat of repeated injury going forward,’” reads the motion.

KMF argues that “plaintiffs must allege an intent to purchase the product at issue in the lawsuit - not some different or new formulation of the product, reformulated to fit his opinion. [A court in an earlier lawsuit] held it was insufficient for the plaintiff to allege she would purchase the defendant’s product if the defendant changed the product’s formula to remove the ingredients plaintiff disfavored.”

Because the plaintiffs in this case only asserted they would purchase the product again in the future if the controversial ingredients were removed, KMF argues that they run no risk of future injury and therefore lack standing to seek injunctive relief.

KMF further argues in its motion to dismiss that the complaint “is a lack of substantiation claim in disguise” due to the flexible standards surrounding use of the word “natural” in health and beauty products.

“As acknowledged by the FTC, USDA and FDA, as well as third-party natural standards, depending on the context, ‘natural’ conveys different meanings,” argues the motion. “Where the challenged claims do not involve a threshold (i.e., quantifiable) claim like ‘100 percent’ or ‘all natural,’ to be considered a ‘natural cosmetic’ is one requiring the marketer to have sufficient substantiation.”

KMF claims that the statements challenged in the lawsuit, including “nourish naturally with our botanical blends” and “100 percent natural mineral” are both truthful, not misleading, and refer only to the specific ingredients, not the product as a whole. 

“Thus, KMF does precisely what FTC tells marketers to do… qualify and substantiate,” the motion states.

The motion to dismiss further argues that the plaintiffs fail to allege a plausible deception. Because the relevant statutes for such a claim require that the alleged misrepresentations could mislead a reasonable consumer, KMF argues that the plaintiffs’ claims fail this test.

“Plaintiffs glibly contend they and other consumers apparently believe any use of the word natural is misleading or false if the product contains even a single synthetic ingredient,” argues the motion. “Thus, under plaintiffs’ theory, any use of any grammatical variation of the word ‘natural’ would be misleading if a single ingredient in a product was synthetic.”

KMF argues that the general public would not expect a cosmetic product to contain no synthetic preservatives, particularly given their expected multi-year shelf life, and therefore this claim fails.

A hearing for the motion was scheduled for Aug. 24. No decision has yet been released by the court.

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U.S. District Court for the Northern District of California
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