19-2474-cv
Critcher, et al v. L’Oreal USA, Inc.




                                            In the
               United States Court of Appeals
                              for the Second Circuit

                                       AUGUST TERM 2019

                                         No. 19-2474-cv

  MARY TULLIE CRITCHER, TWOANA CLARK-SHEPPARD, VICTORIA
MARYNOVSKY, PATRICIA BELBOT, JESSICA PETRIE, LINDA FEIGES, SARAH
MCQUEARY, GEORGETTE C. FOURNIER, INDIVIDUALLY AND ON BEHALF
            OF OTHER SIMILARLY SITUATED PERSONS,
                     Plaintiffs-Appellants

                                               v.

                                       L’OREAL USA, INC.,
                                       Defendant-Appellee,

             ATC ASSOCIATES, INC., ATC GROUP SERVICES, LLC,
                               Defendant.



               On Appeal from the United States District Court
                   for the Southern District of New York



                                SUBMITTED: APRIL 3, 2020
                                 DECIDED: MAY 11, 2020
Before: KEARSE, CABRANES, and PARK, Circuit Judges.




      The question presented is whether the state-law claims at issue
in this action are completely preempted by federal law, in particular,
the federal Food Drug and Cosmetic Act, 21 U.S.C. § 301 et seq.
(“FDCA”).

      Defendant L’Oréal USA, Inc. is a major producer of beauty
products. Plaintiffs are former consumers of some of those products,
specifically a few “liquid cosmetics” like L’Oréal Visible Lift Serum
Absolute and L’Oréal Age Perfect Eye Renewal Eye Cream.

      Plaintiffs brought this action because a portion of each of the
liquid cosmetics they purchased could not be extracted. Unable to
retrieve the full product—and believing that they were deceived into
buying more of the cosmetics than they could use—they sought relief
in the United States District Court for the Southern District of New
York (John G. Koeltl, Judge). They brought several common-law claims
against L’Oréal—for unjust enrichment and breach of the implied
warranty of merchantability—in addition to claims under eight state
consumer-protection statutes.

      Like the District Court, we hold that Plaintiffs’ state-law claims
are, in fact, preempted by the FDCA. Accordingly, we conclude, on
that ground alone, that Plaintiffs’ claims were correctly dismissed by
the District Court and AFFIRM its judgment of July 12, 2019.




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                          Laurence D. King, Matthew B. George,
                          Kaplan Fox & Kilsheimer LLP, San
                          Francisco, CA, for Plaintiffs-Appellants.

                          Peter George Siachos, Gordon, Rees, Scully,
                          Mansukhani, LLP, New York, NY, for
                          Defendant-Appellee.




JOSÉ A. CABRANES, Circuit Judge:

      The question presented is whether the state-law claims at issue
in this action are completely preempted by federal law, in particular,
the federal Food Drug and Cosmetic Act, 21 U.S.C. § 301 et seq.
(“FDCA”).

      Defendant L’Oréal USA, Inc. (“L’Oréal”) is a major producer of
beauty products. Plaintiffs are former consumers of some of those
products, specifically a few “liquid cosmetics” like L’Oréal Visible Lift
Serum Absolute and L’Oréal Age Perfect Eye Renewal Eye Cream.

      Plaintiffs did not bring this suit because they take issue with the
effectiveness of such products. Rather, they bring this suit for another
reason: because the creams are not fully accessible.

      Try as they may, Plaintiffs state that a portion of each of the
creams cannot be extracted from their respective containers. Unable to
retrieve the full product—and believing that they were deceived into




                                   3
buying more of the cosmetics than they could use—they sought relief
in the United States District Court for the Southern District of New
York (John G. Koeltl, Judge). They brought several common-law claims
against L’Oréal—for unjust enrichment and breach of the implied
warranty of merchantability—in addition to claims under eight state
consumer-protection statutes.

       We hold that each of these claims is preempted by the FDCA.
Accordingly, we conclude, on that ground alone, that the claims were
correctly dismissed by the District Court and thus AFFIRM its
judgment of July 12, 2019.

                              I.      BACKGROUND 1

       Mary Tullie Critcher, one of the Plaintiffs, alleges that she
purchased L’Oréal’s Visible Lift Serum Absolute in June 2016, paying
approximately $13 for it. She was able to extract some of the Lift Serum
cream just fine. But she soon found that she was “unable to use all of
[the product] . . . because it could not be completely dispensed from its
container.” 2 This left her—to quote a customer complaint she posted
on L’Oréal’s website—“[v]ery disappointed!!” 3 Alleging that she


       1 Because we are “considering [L’Oréal’s] preemption argument in the
context of a motion to dismiss,” we view “the factual allegations relevant to
preemption . . . in the light most favorable to the plaintiff[s].” Galper v. JP Morgan
Chase Bank, N.A., 802 F.3d 437, 444 (2d Cir. 2015).
       2   Second Amended Complaint (“SAC”) ¶ 48.
       3   Id. at ¶ 49.




                                          4
simply thought this first container was “a lemon[,]” she went out again
to buy another package of the Visible Lift Serum Absolute. 4 But the
results were no better: “[t]he second bottle also stopped dispensing[,]
leaving a significant amount of product stranded.” 5

        Stories similar to Critcher’s inform the allegations of several
other       consumers—including       Twoana       Clark-Sheppard, Victoria
Marynovsky, Patricia Belbot, Jessica Petrie, Linda Feiges, Sarah
McQueary, and Georgette C. Fournier—each of whom claims to have
purchased the Lift Serum or some similar L’Oréal product only to find
that much of the product was not retrievable through conventional
means. Together they brought this putative class action in the District
Court, claiming that L’Oréal—in selling at least four of its “liquid
cosmetics” 6—violated the New York Consumer Protection Statute
(N.Y. Gen. Bus. Law §§ 349-50), the Florida Deceptive and Unfair
Trade Practices Act (Fla. Stat. § 501.201, et seq.), the Kansas Consumer
Protection Act (K.S.A. § 50-623, et seq.), the Missouri Merchandising
Practices Act (Mo. Rev. Stat. § 407.010, et seq.), the Texas Deceptive
Trade Practices Act (Tex. Bus. & Com. Code § 17.41, et seq.), the Nevada
Deceptive Trade Practices Act (Nev. Rev. Stat. § 598.0915 et seq. and §


        4   Id. at ¶ 50.
        5   Id.
        6The four cosmetics that are named in the complaint are the L’Oréal Visible
Lift Serum Absolute Foundation, L’Oréal Age Perfect Eye Renewal Cream, L’Oréal
Revitalift Bright Reveal Brightening Day Moisturizer, and Maybelline Superstay
Better Skin Skin-Transforming Foundation. Plaintiffs allege purchasing only the
Visible Lift Serum Absolute and the Age Perfect Eye Renewal Cream.




                                        5
41.600(1)), the Maryland Consumer Protection Act (Md. Code Ann. §
13-101, et seq.), and the Michigan Consumer Protection Act (Mich.
Comp. Laws Ann. § 445.901, et seq.). They also claimed that L’Oréal
was unjustly enriched and violated the implied warranty of
merchantability in selling the products at issue. They sought, under
the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d)(2), among
other things, damages, restitution, injunctive relief, and a declaration
under the Declaratory Judgment Act, 28 U.S.C. § 2201, et seq.

       L’Oréal moved to dismiss the complaint, contending, among
other things, that the claims alleged were preempted by the federal
law governing cosmetics. In a memorandum and order from July 11,
2019, the District Court agreed. 7 It concluded, in the first place, that the
FDCA, which comprehensively regulates cosmetics and contains a
broad preemption provision, preempts all of Plaintiffs’ state-law
claims. 8 The District Court concluded in the alternative that the Fair
Packaging Labeling Act, 15 U.S.C. § 1451, et seq. (“FPLA”), preempts
the state-law claims as well, and that, even if neither preemption
provision applied, the claims could not survive because no
“reasonable consumer” could have been deceived by L’Oréal’s
products. 9



       7Critcher v. L’Oreal USA, Inc., No. 18-cv-5639 (JGK), 2019 WL 3066394
(S.D.N.Y. July 11, 2019).

       8   Id. at *2-4.
       9   Id. at *4-5.




                                        6
       Plaintiffs appealed the District Court’s dismissal of their
complaint. Because we conclude that the first basis on which the
District Court dismissed the complaint is correct (i.e., FDCA
preemption), we need not reach either of the alternative grounds for
dismissal (i.e., FPLA preemption or application of the “reasonable
consumer” standard).

                                II.      DISCUSSION


                                      A. Standard of Review

       “We review de novo a district court’s application of preemption
principles.” 10 Because “the existence of preemption turns on
Congress’s intent, we are to begin as we do in any exercise of statutory
construction, with the text of the provision in question” 11: in this case,
the text of the FDCA.

                                         B. The FDCA

       In enacting the FDCA in 1938, Congress set out to provide some
national uniformity to the manufacture and sale of cosmetics—
including skin creams—which until that point had been regulated




       10   New York SMSA Ltd. v. Town of Clarkstown, 612 F.3d 97, 103 (2d Cir. 2010).

        In re WTC Disaster Site, 414 F.3d 352, 371 (2d Cir. 2005) (internal alterations
       11

and quotation marks omitted).




                                            7
exclusively by the various laws of the states. 12 The FDCA established
a comprehensive regulatory scheme governing, among other things,
the ingredients, packaging, and marketing of cosmetic products.

       The statute also governed the labeling of cosmetics. According
to the FDCA, cosmetics must follow particular labeling protocols and
may be deemed “misbranded” for several reasons, among them: if the
“labeling is false or misleading in any particular,” 13 or if the label does
not contain “an accurate statement of the quantity of the contents in
terms of weight, measure, or numerical count.” 14

       The FDCA further empowered the newly-created Food and
Drug Administration (“FDA”) to prescribe more specific labeling
requirements consistent with the statute, which it has done over time. 15
Among the rules promulgated by the FDA are those requiring
cosmetic manufacturers to display “a declaration of the net quantity of
contents” which “shall be expressed . . . in terms of fluid measure if
the cosmetic is liquid or in terms of weight if the cosmetic is solid,
semisolid, or viscous.” 16 Other rules specify where the declaration of


       12 S. Comm. on Commerce, S. REP. NO. 75-91, 5 (1937); see also Amalia K.
Corby-Edwards, Cong. Research Serv., R42594, FDA Regulation of Cosmetics and
Personal Care Products, 5 (2012).
       13   21 U.S.C. § 362(a).
       14   Id. § 362(b).
       15   Id. § 371(a).
       16   21 C.F.R. § 701.13(a).




                                      8
the net quantity of contents should be placed on the label, 17 in what
typeface it should be displayed, 18 and in what units of measurement it
should be calculated. 19

       In order to ensure that these various federal requirements are
not obstructed by state law, in 1997, Congress added to the FDCA an
expansive preemption provision covering cosmetics. 20 That provision
stipulates that:

       no State or political subdivision of a State may establish
       or continue in effect any requirement for labeling or
       packaging of a cosmetic that is different from or in
       addition to, or that is otherwise not identical with, a
       requirement specifically applicable to a particular
       cosmetic or class of cosmetics under this chapter, the
       Poison Prevention Packaging Act of 1970 (15 U.S.C. 1471
       et seq.), or the Fair Packaging and Labeling Act (15 U.S.C.
       1451 et seq.). 21

In other words, the FDCA preempts not only those state laws that are
in conflict with it (i.e., any law that is “different from” the FDCA), but

       17   Id. § 701.13(e).
       18   Id. § 701.13(h).
       19   Id. § 701.13(j)-(p).

       20 Food and Drug Administration Modernization Act of 1997, Pub. L. No.
105-115, § 752, 111 Stat. 2296, 2376.

       21   21 U.S.C. § 379s(a).




                                      9
also any state law that provides for labeling requirements that are not
exactly the same as those set forth in the FDCA and its regulations (i.e.,
any law that is “in addition to” the FDCA).

      In turning to Plaintiffs’ complaint, we must determine if any of
the state-law claims it asserts—whether based in statute or common
law—imposes a labeling requirement that is “different from” or “in
addition to” those provided by the FDCA.

                            C. Plaintiffs’ Complaint

      Throughout their complaint, Plaintiffs allege that their injuries
resulted from the fact that the labels of the various L’Oréal products
omitted certain critical information—specifically, that the creams
could not be fully dispensed from their respective containers. Absent
such information, Plaintiffs contend, the products were misbranded in
violation of 21 U.S.C. § 362(a). They assert that any consumer would
need to have known that some product gets stuck in order to make a
reasonably informed purchase; because that information was missing,
no reasonably informed purchase could be made.

      In sum, Plaintiffs state that, “[t]he quantity of Liquid Cosmetic
Product claimed by Defendant on the various packages is deceptive
and misleading because while the containers accurately state the total
amount of product contained therein, Defendant fails to disclose to
consumers that they will not be able to access or use a large




                                   10
percentage—in some cases more than half—of the product
purchased.” 22

       Plaintiffs’ statutory and common-law claims are predicated on
this theory of liability.

       To see whether those claims are preempted, we must consider
what this particular theory of liability implies. Note that Plaintiffs
admit that L’Oréal’s packages comply with federal labeling
requirements. Those packages, they concede, do “accurately state the
total amount or product contained therein,” as is mandated by the
FDCA and the regulations promulgated thereunder. 23

       But Plaintiffs then argue that mere compliance with that net-
quantity disclosure requirement is not enough because it allegedly has
the effect of making the packaging misleading: a consumer will think
that the amount identified on the label is the amount that is accessible.
Therefore, Plaintiffs assert that compliance with one part of the FDCA
and its regulations counterintuitively results in a violation of another
part of the FDCA.

       In order for L’Oréal—or any similarly situated cosmetic
producer—to avoid liability under Plaintiffs’ theory, then, L’Oréal
must make an additional disclosure on its packaging, indicating that




       22   SAC ¶ 7 (emphasis omitted).
       23   Id.




                                          11
some cream cannot be retrieved or that the cream that is accessible is
less than the net quantity displayed on the package label.

       Does this theory survive the FDCA preemption clause?

       We conclude that it does not. If Plaintiffs were permitted to
move forward with their claims, they would be using state law to
impose labeling requirements on top of those already mandated in the
FDCA and the regulations promulgated thereunder. These would be
requirements “different from” or “in addition to”—or otherwise “not
identical with”—those requirements that federal law already imposes.
This is exactly what the FDCA does not permit. Congress or the FDA
could have chosen to mandate such additional labeling when they
established     the    comprehensive          regulatory     regime      governing
cosmetics, but they did not. And because of the broad preemption
provision that Congress did choose to include, Plaintiffs cannot now
seek to impose those requirements through alternative means
grounded in state law.

       In so holding, we draw on similar conclusions already reached
by district courts in this Circuit and elsewhere. 24 As one of those


       24 See Crozier v. Johnson & Johnson Consumer Companies, Inc., 901 F. Supp. 2d
494, 504 (D.N.J. 2012) (noting, in the related context of drug regulation, that “FDA
regulations cover the entire label [of the drug], including indications of a product’s
brand name, and thus preempt challenges to a label, even if the challenge is not
based on inaccuracy or incompleteness”); see also O’Connor v. Henkel Corp., No. 14-
cv-5547 (ARR/MDG), 2015 WL 5922183, at *5 (E.D.N.Y. Sept. 22, 2015) (noting that
“plaintiffs can escape the preemptive force of the FDCA only if their claims seek to
impose requirements that (1) are identical to those imposed by the FDCA, or (2) are




                                         12
district courts noted in an analogous case dealing with deodorant
containers that the plaintiffs alleged were underfilled, the “FDA can
and does impose additional labeling requirements when the standard
net weight declaration leaves consumers with insufficient, misleading,
or inaccurate information”—requirements that the FDA imposes in
the area of food packaging. 25 “Yet the FDA has declined to do so for
the category of products at issue here”—namely, cosmetics. 26
Therefore, that court concluded that “[b]ecause federal law does not
impose an obligation to include supplemental statements regarding
usable net weight, preemption bars these claims.” 27

       We also draw on the conclusion reached by one of our sister
Circuits in the related context of FDCA-food regulation, for which the
FDCA contains a similar preemption provision that blocks state-law
claims unless the requirements of the state law are “identical” to those
that federal law imposes. 28 In that case, the Seventh Circuit noted that
even when additional “disclaimers [on a product’s packaging] would
be a good thing” for the consumer, as long as those additional-
disclaimer        requirements     are    “not   identical   to   the   labeling


outside the scope of the relevant federal requirements”); Bimont v. Unilever U.S.,
Inc., No. 14-cv-7749 (JPO), 2015 WL 5256988 (S.D.N.Y. Sept. 9, 2015).
       25   O’Connor, 2015 WL 5922183, at *6.
       26   Id.
       27   Id.
       28   21 U.S.C. § 343-1.




                                         13
requirements imposed on such products by federal law, . . . they are
barred.” 29

       Plaintiffs try to rescue their claims from preemption in several
ways, each of which we find unavailing.

                                                  1.

       Among their arguments, Plaintiffs contend that the state laws
implicated        by    their     claims     would      merely      impose     labeling
requirements consistent with those already in the FDCA—that is, not
“different from” or “in addition to” the FDCA requirements. 30
Specifically, Plaintiffs argue that these state laws enforce the general
FDCA requirements of (1) 21 U.S.C. § 362(a) that labels not be “false
and misleading in any particular” and (2) 21 U.S.C. § 362(d) that
containers not be “formed, or filled to be misleading.” Putting aside
for now the fact that they did not invoke 21 U.S.C. § 362(d) in their
complaint, we conclude that neither general requirement can be read
to impose the particular labeling additions that Plaintiffs seek here.




       29   Turek v. General Mills, Inc., 662 F.3d 423, 427 (7th Cir. 2011).
       30Later in their brief, Plaintiffs also argue the exact opposite as a ground for
avoiding preemption. They argue that their state-law claims, far from enforcing the
terms of the FDCA, are in fact outside the scope of the FDCA. To justify this
argument, Plaintiffs assert that their claims focus on the products’ defective
dispensers, not on the products’ labels, and thus involve a subject matter that is
beyond the federal statute’s purview and preemptive force. We address this
product-defect theory of liability in the next section below.




                                             14
      As already noted, the FDA has promulgated rules regulating
what must be included on labels. The regulations have therefore
stated, with specificity, what information is necessary to avoid
misleading consumers—such as, the net quantity of the product in a
container. In light of the technical nature of such requirements—
combined with Congress’s broad, categorical statement of preemption
in the FDCA—we are reluctant to conclude that states may impose
other labeling requirements that have not been imposed by Congress
or the FDA. If we were to impose such additional labeling
requirements, we would be construing state law to impose many
“requirements” that are not contained in the federal statute, or in the
regulations issued thereunder, and to disrupt what Congress intended
to be a uniform—and federally-led—regulatory scheme.

                                              2.

      Plaintiffs also contend that the crux of their complaint was not
only that L’Oréal’s labels were misleading, but also that its containers
were defective. But, in fact, Plaintiffs did not make this product-defect
theory clear in their complaint or before the District Court (failing to
invoke 21 U.S.C. § 362(d), for example). Rather, Plaintiffs continually
invoked 21 U.S.C. § 362(a) and repeatedly noted that they were
aggrieved because L’Oréal’s “labels are misbranded in violation of the
FDCA’s requirements that such labeling not be ‘false or misleading in
any particular.’” 31



      31   SAC ¶ 107 (quoting 21 U.S.C. § 362(a)).




                                         15
      Section 362(a) was the specific FDCA provision that they sought
to enforce through their state-law claims, noting that it was because of
what they saw as L’Oréal’s “material misrepresentations and
omissions on its misbranded products” that they, as “reasonable
consumers” were “misle[d].” 32 As the District Court aptly noted,
Plaintiffs’ alleged “injury flows directly from the labeling of L’Oréal’s
products.” 33 They cannot replead their case on appeal to be about a
product “defect.”

      In short, Plaintiffs cannot avoid the sweeping preemptive force
of the FDCA. Their state-law claims—all of which seek to impose
labeling requirements that are additional to, or different from, those
that federal law has established—are barred.

                               III. CONCLUSION

      To summarize, we hold that the FDCA’s broad preemption
clause, 21 U.S.C. § 379s, bars Plaintiffs from seeking to impose
additional or different labeling requirements through their state-law
claims, especially when Congress and the FDA already have provided
for specific labeling requirements.

      For the foregoing reasons, we AFFIRM the District Court’s July
12, 2019 judgment.




      32   Id. at ¶ 120.
      33   Critcher, 2019 WL 3066394, at *3.




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