SAN FRANCISCO (Legal Newsline) - The maker of eye makeup is calling for a federal judge to toss the lawsuit of a woman who wasn't physically harmed by its products.
Plaintiff Kacey Wilson and her lawyers at Bursor & Fisher sued ColourPop Cosmetics earlier this year in California federal court, alleging its eye makeup features color additives that are designated by the Food and Drug Administration as unsafe for that party of the body.
Only the federal government can bring action under the Food, Drug, and Cosmetic Act, the company's lawyers say.
"Plaintiff's case fails because there is no direct or indirect right to bring a private action under the (FDCA). Nor is there any way to privately enforce the FDCA. The Ninth Circuit just confirmed this... ruling, 'This Act includes a prohibition on private enforcements: all proceedings to enforce or restrain violations of the FDCA must be 'by and in the name of the United States.'"
Wilson lacks standing to bring suit, the company adds, though her lawyers complain she was duped into paying for makeup that wasn't as safe as it was marketed as.
"She does not allege any problems with the makeup after her 'use,'" the motion to dismiss says. "She does not allege eye irritation, staining, physical injury, or any problem whatsoever.
"She does not allege the makeup did not work as makeup or any dissatisfaction. She does not allege if she saw the instruction on the back of the packages. She does not allege what she read in the store or online before she bought the products.
She does not allege if she saw any advertising for the 'Boudoir Noir' and 'Menage a Muah' palettes that she purchased. She does not allege that she saw any ColourPop advertising at all. She does not allege what she knew about the palettes before she purchased. She does not allege what color additives were 'harmful' in the palettes she purchased."