SAN FRANCISCO (Legal Newsline) - The woman not hurt by eye makeup with allegedly harmful color additives will appeal the loss of her class action lawsuit.
Plaintiff Kacey Wilson and her lawyers at Bursor & Fisher filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit on Oct. 4, a month after San Francisco federal judge Trina Thompson tossed their complaint.
Thompson ruled Wilson's claims were basically allegations of violations of the Food, Drug, and Cosmetics Act, which is enforced by the Food and Drug Administration.
"A plaintiff cannot plead around FDCA preemption if the existence of the claim arises from violation of the FDCA," Thompson ruled Sept. 7.
"In sum, although Plaintiff states that she amended her claims to 'specify the serious dangers posed by each of the Harmful Ingredients and clarified her allegations as to Defendant's misrepresentations and omissions,' her claims still arise from alleged violations of the FDCA."
The suit claims the FDA 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 FDCA.
The color additives have names like FD&C Red No. 4.