Product Liability & Toxics Law News

Nivea False Ad Class Suit Revived

Dec. 12, 2018, 3:29 PM

Beiersdorf Inc. faces a revived class action alleging its Nivea Skin Firming Hydration Body Lotion is falsely labeled and actually an unapproved “drug” that shouldn’t have been on the market.

A federal appeals court reinstated the suit Dec. 11 finding both enough money at issue in federal court, and that the consumer who filed the suit alleged sufficient injury for standing.

Beiersdorf allegedly sold its Nivea Skin Firming Hydration Body Lotion with CoQ10 Plus formulated with Co-Enzyme Q10 and Hydra-IQ with a label stating that it “Improves Skin’s Firmness in as little as 2 weeks,” according to the lower court’s opinion.

That label claim makes the lotion a drug that requires Food and Drug Administration approval, Franz alleges.

Would-be class representative Ashley Franz easily met the $5 million minimum amount in controversy, given she alleges multiple years of sales of the $10 lotion in California, the U.S. Court of Appeals for the Ninth Circuit said.

Even Beiersdorf didn’t dispute that point, the Ninth Circuit said. The trial court raised the issue on its own.

But the company sold the lotion without FDA approval, in violation of federal and state law, she says.

Those alleged violations mean Franz doesn’t need to show her reliance on Beiersdorf’s marketing statements, the appeals court said. Thus, Franz has standing to sue under California consumer-protection law, the Ninth Circuit panel said.

She also has constitutional standing, the court said.

Bonnett Fairbourn Friedman & Balint PC and others represented Franz.

Sidley Austin LLP represented Beiersdorf.

The case is ASHLEY FRANZ, On behalf of herself and v. BEIERSDORF, INC., a Delaware corporation, Defendant-Appellee., 2018 BL 457699, 9th Cir., No. 17-55646, 12/11/18.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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