Case 1:21-cv-07300-ALC Document 23 Filed 09/27/22 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`ROCIO LOPEZ, individually and on behalf of
`all others similarly situated, and RACHEL
`LUMBRA, individually and on behalf of all
`others similarly situated,
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`9/27/2022
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`Plaintiffs,
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`-against-
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`21-cv-7300 (ALC)
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`OPINION & ORDER
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`L’ORÉAL USA, INC.,
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`Defendant.
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`ANDREW L. CARTER, JR., United States District Judge
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`Plaintiffs Rocio Lopez and Rachel Lumbra sue on behalf of a putative nationwide class
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`and state subclasses of L’Oréal consumers. Plaintiffs also sue on behalf of respective statewide
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`classes. They allege that L’Oréal materially misled its customers about the nature of the collagen
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`ingredients in its anti-aging products. Plaintiffs assert that Defendant marketed these products as
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`anti-aging because of the collagen ingredient when L’Oréal knew that the collagen in these
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`products could not sufficiently penetrate the skin to produce the purportedly anti-aging effects.
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`Defendant moved to dismiss plaintiff’s Amended complaint.
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`BACKGROUND
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`At the center of this case is collagen, a coveted ingredient in many a healthcare and self-
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`care product. Amended Complaint (“Am. Compl.”) ¶ 18, ECF No. 10. So coveted, in fact,
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`demand for collagen is a billion-dollar market, which analysts expect to remain so in the near
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`future. Id. ¶¶ 2, 18. Collagen is a protein molecule found in human connective tissue. Id. ¶15.
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`Plaintiffs allege collagen is “one of the main building blocks for bones, skin, hair, muscles,
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`tendons, and ligaments.” Id. ¶ 3. Although the human body naturally produces collagen, like
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`many things, this process slows as we age. Id. ¶¶ 4, 16-17. Decrease in collagen production
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`“leads to a decline in the structural integrity of the skin, leading to the dehydration and thinning
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`of the skin,” resulting in wrinkles and sagging skin, two oft-maligned signs of aging. Id. ¶ 17.
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`In combating these conditions, consumers turn to skincare products promising “to replace
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`the natural collagen organically lost by aging of the human body.” Id. ¶ 5. Plaintiffs claim
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`manufacturers seek to satisfy consumer demand by marketing collagen as a “beauty product
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`ingredient” that can “improve the health and appearance of consumers skin.” Id. ¶ 6. They
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`allege that “topical collagen products are incapable of producing these desired effects.” Id. ¶¶
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`20-21. Because “the molecules in topically-applied collagen are too large to fit through the
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`uppermost layer of the skin.” Id. ¶ 20. Plaintiffs state that native collagen has a molecular
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`weight of 300kDa, rendering it too large to be absorbed by the epidermis. Id. ¶ 25.
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`Despite this, Plaintiffs allege that Defendant L’Oréal, an international cosmetics
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`manufacturer, offers skincare products claiming to do the impossible. Id. ¶¶ 22-32. Plaintiffs
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`take issue with two of the Defendant’s topical collagen products: L’Oréal Collagen Moisture
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`Filler Day/Night Cream and L’Oréal Fragrance-Free Collagen Moisture Filler Daily Moisturizer
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`(collectively, the “Products”). Id. ¶ 23. The Products contain “[s]oluble collagen” and
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`“[a]telocollagen.” Id. ¶¶ 23-26. The Products are packaged in a box with descriptive phrases
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`and L’Oréal branding on the front of the package. The Products feature the term “COLLAGEN”
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`in large letters with the phrase “MOISTURE FILLER” in smaller font appearing directly
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`underneath. Id. at 8. The Day/Night Cream also features this phrasing “COLLAGEN MOISTURE
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`FILLER” on the top of its package. Id. In addition, they feature the term “DAILY
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`MOISTURIZER.” Id. Directly below, the daily moisturizer phrase, the Day/Night Cream
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`packaging states “Restore skin’s cushion and smooth wrinkles.” Id. It also states “Natural
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`Collagen” below these claims. Id. The Fragrance-Free moisturizer carries similar phrases,
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`Case 1:21-cv-07300-ALC Document 23 Filed 09/27/22 Page 3 of 11
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`claiming to “Visibly smooth wrinkles” and “Restore skin’s cushion.” Id. Pictures of the
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`Products included in the Amended Complaint are provided below.
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`Plaintiffs contend that the Products’ packaging claims that these “anti-aging and skin-
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`firming benefits” are a result of the “COLLAGEN.” Id. ¶ 22. However, the topical collagen
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`and collagen-related ingredients in the Products—“soluble collagen” and “atelocollagen”— each
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`have a molecular weight too high to penetrate the skin. Id. ¶¶ 25-26. They note that “no topical
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`collagen product can stimulate and increase natural collagen production.” Id. ¶ 20.
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`Plaintiffs believe the Products “are incapable of providing the touted benefits[] and are
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`therefore ineffective.” Id. ¶ 24. Given this, they believe Defendant has perpetrated “widespread
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`fraud.” Id. ¶ 8. They claim that Defendant sells this product at a “price premium” when they
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`knew or should have known these representations were “false, deceptive, and misleading.” Id.
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`¶¶ 19, 11, 31. Plaintiff filed suit on August 31, 2021. Defendants now move to dismiss.
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`LEGAL STANDARD
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`To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain
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`sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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`570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows
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`the Court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Id. (citing Twombly, 550 U.S. at 556). The plaintiff must allege sufficient facts to
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`show “more than a sheer possibility that a defendant has acted unlawfully.” Id. When ruling on
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`a Rule (12)(b)(6) motion, a court must accept the factual allegations set forth in the complaint as
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`true and “draw all reasonable inferences in [plaintiff’s] favor.” See, e.g., Faber v. Metro. Life
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`Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011).
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`DISCUSSION
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`Plaintiff Lopez brings claims under New York law, and Plaintiff Lumbra brings claims under
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`California law. The Court will address the false advertising claims brought under New York and
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`California law before turning to Plaintiff Lopez’s express warranty claims.
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`I.
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`Plaintiffs’ False Advertising Claims
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`A. New York Statutory Law
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`Plaintiff Lopez brings claims under New York law, and Plaintiff Lumbra brings claims
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`under California law. Plaintiff Lopez brings suit under Sections 349 and 350 of the New York
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`General Business Law. GBL § 349 prohibits “[d]eceptive acts or practices in the conduct of any
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`business, trade or commerce or in the furnishing of any service” and GBL § 350 prohibits
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`“[f]alse advertising in the conduct of any business, trade or commerce. GBL § 349–50. To assert
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`a claim under Sections 349 and 350, “a plaintiff must allege that a defendant has engaged in (1)
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`consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury
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`as a result of the allegedly deceptive act or practice.” Nick’s Garage, Inc. v. Progressive
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`Casualty Ins. Co., 875 F.3d 107, 124 (2d Cir. 2017) (internal quotation marks and citations
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`omitted). “The standard for recovery under General Business Law § 350, while specific to false
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`advertising, is otherwise identical to section 349, and therefore the Court will merge its analysis
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`of the two claims.” Cosgrove v. Oregon Chai, Inc., 520 F. Supp. 3d 562, 575 (S.D.N.Y. 2021)
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`(internal quotation marks and citations omitted).
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`B. California Statutory Law
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`Plaintiff Lumbra brings suits under California’s Consumers Legal Remedies Act
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`(“CLRA”), California Civil Code § 1750 et seq.; False Advertising Law (“FAL”), Business &
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`Professions Code §17500 et seq.; and Unfair Competition Law (“UCL”), Business & Professions
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`Code § 17200 et seq. “The CLRA makes it unlawful to use ‘unfair methods of competition and
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`unfair or deceptive acts or practices’ in the sale of goods or services to a consumer.” Lozano v.
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`AT & T Wireless Servs., Inc., 504 F.3d 718, 730 (9th Cir. 2007) (quoting Cal. Civ. Code § 1770).
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`The UCL prohibits “any unlawful, unfair or fraudulent business act or practice and unfair,
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`deceptive, untrue or misleading advertising . . . .” Cal. Bus. & Prof. Code § 17200. The statute
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`“is violated where a defendant’s act or practice is (1) unlawful, (2) unfair, (3) fraudulent, or (4)
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`in violation of [the FAL].” Lozano, 504 F.3d at 731 (citing Cel–Tech Commc’ns, Inc. v. Los
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`Angeles Cellular Tele. Co., 20 Cal. 4th 163, 83 Cal. Rptr. 2d 548, 561, 973 P.2d 527 (1999)).
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`The FAL “prohibits the dissemination in any advertising medium of any ‘statement’ concerning
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`‘real or personal property’ offered for sale, ‘which is untrue or misleading, and which is known,
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`or which by the exercise of reasonable care should be known, to be untrue or misleading.’”
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`Hughes v. Ester C Co., 930 F. Supp. 2d 439, 457, 466 (E.D.N.Y. 2013) (quoting Cal. Bus. &
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`Prof. Code § 17500). To assert a claim for false advertising, “a plaintiff must allege that (1) the
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`statements in the advertising are untrue or misleading, and (2) the defendants knew, or by the
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`exercise of reasonable care should have known, that the statements were untrue or misleading.”
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`Miller v. Ghirardelli Chocolate Co., 912 F. Supp. 2d 861, 873 (N.D. Cal. 2012).
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`C. The Misleading Requirement and the Reasonable Consumer Test
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`“To prevail on their consumer fraud claims under New York and California law,
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`Plaintiffs must establish that [Defendant]'s allegedly deceptive advertisements were likely to
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`mislead a reasonable consumer acting reasonably under the circumstances.” Fink v. Time
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`Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013).
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`Under New York law, to be misleading, the advertising in question must be “likely to
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`mislead a reasonable consumer acting reasonably under the circumstances.” Orlander v. Staples,
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`Inc., 802 F.3d 289, 300 (2d Cir. 2015). The primary evidence in a consumer-fraud case arising
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`out of allegedly false advertising is . . . the advertising itself.” Fink, 714 F.3d at 742. Though
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`the issue of whether a reasonable consumer was misled by a business act or practice is normally
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`a question of fact, “[i]t is well settled that a court may determine as a matter of law that an
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`allegedly deceptive [act or practice] would not have misled a reasonable consumer.” Fink v.
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`Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013) (internal quotation marks and citations
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`omitted).
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`Under California law, Plaintiff’s claims under the CLRA, UCL, and FAL are subject to
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`the reasonable consumer test. “Under the reasonable consumer standard, [Plaintiff] must ‘show
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`that members of the public are likely to be deceived.’” Williams v. Gerber Prod. Co., 552 F.3d
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`934, 938 (9th Cir. 2008) (quoting Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995)).
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`D. Application
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`Plaintiffs claim the Products’ labels use of the term “COLLAGEN” leads the consumer to
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`believe that it is the collagen that achieves the anti-aging effects. But the Products contain
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`topical collagen, which cannot penetrate the skin. Plaintiffs argue that the inability to penetrate
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`the skin necessarily means that the products cannot produce the claimed anti-aging effects.
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`Defendant argues that this is a leap in logic, ignoring the interpretation that collagen could work
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`to moisturize the skin. Under this interpretation of the Products’ labels, the collagen’s inability
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`to penetrate the skin does not render the packaging and its claims materially misleading.
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`Defendant has the better of this argument. Taking Plaintiffs’ allegations regarding topical
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`collagen as true, Plaintiffs have not alleged that the other ingredients in the Products do not
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`produce the claimed anti-aging effects.
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`Plaintiffs’ more compelling claim is that Defendant’s use of the term “COLLAGEN’ is
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`intended to associate the Products with the common understanding of collagen’s cosmetic
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`benefits. She argues that had she known the collagen in the Products would not provide these
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`cosmetic benefits, she would not have paid the price premium for the products.
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`The price premium theory of liability does not require Plaintiffs to make any claims
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`regarding the efficacy of the product. See Segedie v. Hain Celestial Grp., Inc., No. 14-CV-5029
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`NSR, 2015 WL 2168374, at *12 (S.D.N.Y. May 7, 2015) (“Plaintiffs have also adequately
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`alleged injury by claiming that they paid a price premium that they would not have paid if the
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`products were not labeled “natural” or “all natural.”); Ackerman v. Coca–Cola Co., No. CV–09–
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`0395 (JG), 2010 WL 2925955, at *23 (E.D.N.Y. July 21, 2010) (“Injury is adequately alleged
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`under GBL §§ 349 or 350 by a claim that a plaintiff paid a premium for a product based on
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`defendants' inaccurate representations.”). Similarly, under California law, “[a] claim under the
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`FAL may be based on ‘advertising which, although true, is either actually misleading or which
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`has a capacity, likelihood or tendency to deceive or confuse the public.’” Sabatano v. Iovate
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`Health Scis. U.S.A. Inc., No. 19 CV 8924 (VB), 2020 WL 3415252, at *3 (S.D.N.Y. June 22,
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`2020) (quoting Kasky v. Nike, Inc., 27 Cal. 4th 939, 951 (2002) (alterations omitted)).
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`The narrow question, then, is whether a reasonable consumer could believe that the term
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`“COLLAGEN” on the label referred to collagen molecules that provide cosmetic benefits. “[I]n
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`determining whether a reasonable consumer would have been misled by a particular
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`advertisement, context is crucial.” Fink, 714 F.3d at 742. Defendant argues that a consumer
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`could reasonably believe the COLLAGEN referred to the use of the molecule as a moisturizing
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`agent. They cite Fink v. for the proposition that “plausibility requires absence of other obvious
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`alternatives. However, Fink does not go that far. Fink states that “[p]lausibility . . . depends on a
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`host of considerations: the full factual picture presented by the complaint, the particular cause of
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`action and its elements, and the existence of alternative explanations so obvious that they render
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`plaintiff’s inferences unreasonable.” Fink, 714 F.3d at 741 (citing L–7 Designs, Inc. v. Old Navy,
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`LLC, 647 F.3d 419, 430 (2d Cir.2011)).
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`Defendant’s alternative explanation is not one “so obvious” as to render Plaintiffs’
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`inferences unreasonable. A few courts in this district have contemplated similar factual
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`scenarios. Plaintiffs in those cases brought false advertising claims under New York or
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`California statutes alleging misleading representations in advertising. In those cases, defendants
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`packaging made claims, whether express or through context, that misled consumers to associate
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`their products with widely known benefits or attributes that the product did not provide. For
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`instance, in Colpitts v. Blue Diamond Growers, 527 F. Supp. 3d 562, 582 (S.D.N.Y. 2021), the
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`product’s name could have lead consumers to believe that its almonds were flavored through
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`smoking. In Mogull v. Pete & Gerry’s Organics, LLC, No. 21 CV 3521 (VB), 2022 WL 602971
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`(S.D.N.Y. Feb. 28, 2022), defendant’s product name, website domain name, and varying claims
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`could plausibly lead a reasonable consumer to believe that their eggs did indeed come from free
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`range chickens.
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`In Colpitts, defendant, a distributor of almond related products, sold “smokehouse”
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`almonds. Plaintiff sued alleging that defendant misled consumers to believe that the almonds
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`were prepared in a smokehouse. Colpitts, 527 F. Supp. 3d at 581. Defendant argued that a
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`reasonable consumer could think that “smokehouse” referred to the almonds flavor. Id. at 580.
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`The Court noted that the term “smokehouse” is “not a word commonly used to describe a flavor”
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`but usually denotes food prepared via smoking in a physical structure. Id. at 581. In addition,
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`the product’s packaging provided no qualifications to note that “smokehouse” referred only to
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`the flavor of the almonds and not the manner of preparation. Id. The Court ruled that plaintiff
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`had a plausible claim under Sections 349 and 350.
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`In Mogull, plaintiff sued a distributor of eggs, arguing that the defendant’s “free-range”
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`labeled eggs were misleading. Defendant’s packaging and website boasted about the benefits of
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`“free-range” eggs to the consumer and the environment in which chickens that laid those eggs
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`were raised. Mogull, 2022 WL 602971, at *3. The product label in question noted that the eggs
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`were “Certified Humane Free Range.” Id. Plaintiff argued that defendant’s free-range claims
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`were misleading because the “hens were crammed into henhouses 20,000 at a time, many which
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`are unable to ever access outside space.” Id. Plaintiff argued she relied on defendant’s “free-
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`range” representations and paid a premium for their product. Defendant argued that the
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`“Certified Humane Free-Range” phrase on the packaging was not misleading because its eggs
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`met the “Certified Humane” qualification. Id. The court rejected this rationale noting that the
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`“‘free-range’ is displayed as a standalone phrase throughout defendant’s packaging, and only
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`appears once directly adjacent to ‘Certified Humane.’” Id. The court concluded that “a
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`reasonable consumer would not understand ‘free-range eggs’ to convey that Nellie’s eggs meet
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`the ‘Certified Humane’ standard.” Id.
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`Here, Plaintiff has plausibly alleged that the term “collagen” is associated with the skin-
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`related benefits of the collagen molecule. The Products contain no qualifying language
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`regarding the inability for the collagen or collagen-related ingredients to penetrate the skin.
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`Instead, the language on the Products serve to further link the products with the benefits of
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`collagen. The Products promise to deliver benefits by “smoothing wrinkles” and “restore skin’s
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`cushion.” These benefits purport to reverse signs of aging, namely the dehydration and thinning
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`of the skin, that are commonly associated with the decrease in production of natural collagen.
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`The Products’ name—COLLAGEN MOISTURE FILLER—also serves to reinforce this
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`connection. In the cosmetics industry, a filler is commonly understood to as a substance used to
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`reverse, albeit temporarily, the signs of aging on the skin by “filling in” wrinkles and plumping
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`the face. See Facial Fillers for Wrinkles; MAYO CLINIC’ https://www.mayoclinic.org/tests-
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`procedures/facial-fillers/about/pac-20394072 (“Facial fillers are substances injected into the skin
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`to smooth wrinkles and make them less noticeable.”) (last visited Sept. 1, 2022); Dermal Fillers,
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`Cleveland Clinic, https://my.clevelandclinic.org/health/treatments/22667-dermal-fillers (“Dermal
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`fillers plump up wrinkles, smooth lines and restore volume in your face.”) (last visited Sept. 1,
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`2022).
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`It is wholly plausible that a reasonable consumer, shopping for cosmetics, saw a product
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`named COLLAGEN MOISTURE FILLER, promising to “smooth wrinkles” and “restore skin’s
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`cushion,” and associated this product with the cosmetic benefits of the collagen molecule.
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`II.
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`Breach of Express Warranty under New York Law
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`Plaintiff Lopez claims that Defendant’s representations breached an express warranty
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`under New York law. Defendant’s supporting memorandum does not address Lopez’s express
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`warranty claims. Accordingly, the Court declines to rule on this claim.
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`CONCLUSION
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`For the foregoing reasons, Defendant’s motion to dismiss is DENIED. The Clerk of the
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`Court is respectfully directed to terminate ECF No. 18.
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`SO ORDERED.
`Dated:
`September 27, 2022
`New York, New York
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`ANDREW L. CARTER, JR.
`United States District Judge
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`11
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