SAN FRANCISCO (Legal Newsline) - A woman not hurt by eye makeup that allegedly contains harmful color additives has lost her proposed class action lawsuit.
But plaintiff Kacey Wilson and her lawyers at Bursor & Fisher have 14 days to file an amended complaint to try to change the mind of San Francisco federal judge Trina Thompson, who dismissed their first amended complaint April 13.
The suit claims the Food and Drug Administration has designated ingredients in ColourPop eye makeup as unsafe for that part of the body. But the company argued only the federal government could bring action under the Food, Drug, and Cosmetic Act.
"Besides Plaintiff's allegations that Defendant failed to disclose that the products were 'formulated with an/or contan certain color additives that are not safe for us in the eye area,' and thus the product are 'adulterated and misbranded' under the FDCA and her allegations that the products are defective or unfit for ordinary use because they contain harmful ingredients.. Plaintiff does not specify what particular 'false and misleading' statements Defendant made 'regarding the quality, safety and reliability' of the products," Thompson wrote.
"The Court finds that, as presently plead, all of Plaintiff's claims 'exist solely by virtue of the FDCA... requirements.'"
The complaint seeks to impose liability for violations of the FDCA, which is impliedly preempted, Thompson wrote.
Thompson did not address other dismissal arguments made by ColourPop, like the plaintiff lacks standing because she wasn't physically harmed.
The color additives have names like FD&C Red No. 4.