In March 2022, a putative class action lawsuit was filed in the U.S. District Court for the Southern District of New York against L’Oreal U.S.A., Inc. alleging that the company had violated a host of state consumer protection laws by failing to disclose that several of its waterproof mascara products contain PFAS.  On September 30, 2023, the Court granted L’Oreal’s motion to dismiss the Complaint on the basis that the Plaintiffs did not have standing to bring the claim because they did not adequately plead that the mascaras they purchased contained PFAS.  Plaintiffs alleged that L’Oréal engaged in misleading and deceptive advertising by representing that the company’s waterproof mascaras were safe and appropriate for use on consumers’ eyelashes and around their eyes when many of these products contained detectable amounts of PFAS, and that the Plaintiffs paid a premium price for the mascara based on this advertising.  To support their allegations, Plaintiffs cited to a 2021 study by the University of Notre Dame that screened 231 cosmetic products and found high fluorine levels in products commonly advertised as ‘wear-resistant’ or ‘long-lasting,’ including waterproof mascaras.  However, the complaint did not allege that the Notre Dame Study included any L’Oréal waterproof mascara products, and the court noted that the presence of fluorine is not the same as the presence of PFAS.  Plaintiffs also conducted their own study that included L’Oréal waterproof mascaras and alleged that the products tested were shown to have PFAS levels above EPA’s lifetime Health Advisory Level, but the Plaintiffs did not provide details regarding the findings such as the percentage of a particular product that tested positive for PFAS, which types of PFAS were detected, or when the study occurred.  The Court found that the allegations in the Complaint “boil down to describing general and unspecific results of testing, without meaningfully linking those results to Plaintiffs’ actual Purchased Products beyond Plaintiffs’ information and belief” and, as a result, the Plaintiffs had not plausibly pleaded that PFAS were present in the products they purchased in a systematic and routine way.  Since the Complaint was dismissed without prejudice with leave to amend, we may see another round in this litigation.  Stay tuned for updates.

The case is Hicks v. L’Oreal U.S.A., 22 Civ. 1989 (JPC) (S.D.N.Y. Sep. 30, 2023)