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Wednesday, September 18, 2019

Kiss My Face: Stop letting class action plaintiffs try to fix their lawsuit

By Elizabeth Alt | Apr 10, 2018

SAN FRANCISCO (Legal Newsline) – Attorneys for the cosmetics company Kiss My Face have asked the U.S. District Court for the Northern District of California to dismiss the complaint alleging its use of the term “natural” misleads customers, stating the plaintiffs have “largely disregarded” the court’s previous orders to amend their complaint.

“Plaintiffs cannot seek reconsideration merely by repeating the same allegations accompanied by legal argument that this court was wrong,” the Feb. 8 letter brief in support of the motion for judgment on the pleadings states.

Angela L. Diesch, of Diesch Forrest Law, sent a letter to Magistrate Judge Jacqueline Scott Corley requesting to grant summary judgment to KMF on Feb. 8 in response to the plaintiffs’ second amended complaint.

Kiss My Face is a beauty and personal care company known for soaps, lotions, sunscreens, facial products and more.

The plaintiffs, Andrew Gasser, who was joined later by Noriko Ikeda and Melinda Kelly, filed a lawsuit against KMF for misusing the term “natural,” specifically the phrases “nourish naturally with our botanical blends” and “obsessively natural kids” on its products mislead consumers to thinking its products contain no synthetic ingredients.

The plaintiffs claim that because KMF products contain the chemicals phenoxyethanol and/or ethylhexylglycerin, it is falsely advertising its products. The letters states that the plaintiffs allege “The labeling has the capacity to confuse or mislead reasonable consumers, including plaintiffs, because they expect a product that is labeled or advertised as being 'natural,' or that it performs its intended function 'naturally,' to be free from synthetic ingredients.”

The plaintiffs contend that they would like to buy the defendant’s products in the future, if they were “natural.”

KMF argued that the plaintiffs lacked standing because they only alleged that they would buy the products if the chemicals were removed from the products, showing no future injury. KMF also stated that the beauty industry loosely uses the term “natural,” which consumers understand.

The district court dismissed the complaint in June 2017 with leave to amend. The letter states that “Plaintiffs cannot establish a likelihood of future injury as they would not purchase the Products again if the unnatural ingredients remain.” 

According to the letter sent by Diesch, the plaintiffs’ latest amendments still do not claim that they would purchase the product in the future, but now claim that if KMF did at some time change its formulas, they would not know, causing possibly future injury.

Diesch says the arguments in the plaintiffs’ second amended complaint “in no way correct the flaws identified in the court’s Oct. 23, 2017, order.” 

Diesch quotes from the court ruling that the court decided ““[t]he statements ‘nourish naturally with our botanical blends’ and ‘obsessively natural kids’ . . . are not likely to deceive a reasonable consumer,” and says that the plaintiffs have only added “conclusory allegations that the court’s finding as to those phrases – which is now law of the case – is wrong, and that the terms 'naturally' and 'natural' are inherently confusing and misleading for consumers.”

“Plaintiffs have now had three opportunities to state their claims. There is no reason to allow them to keep trying,” Diesch says.

KMF has requested that the claims for the injunctive relief and all claims in the lawsuit be dismissed without prejudice and grant summary judgement to Kiss My Face LLC.

U.S. District Court for the Northern District of California, case number 3:17-cv-01675

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