Case 1:22-cv-01013 Document 1 Filed 02/04/22 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`
`Civil Action No.
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`CLASS ACTION COMPLAINT AND
`DEMAND FOR JURY TRIAL
`
`JASMINE LERNER, on behalf of herself
`and all others similarly situated,
`
`Plaintiff,
`
`
`
`v.
`
`
`CVS HEALTH CORPORATION,
`
`
`
`
`
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`Defendant.
`
`
`
`
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`Plaintiff Jasmine Lerner (“Plaintiff”) brings this action on behalf of herself and all others
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`similarly situated against Defendant CVS Health Corporation (“CVS” or “Defendant”) for the
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`manufacture, marketing, and sale of CVS After-sun Aloe Vera Soothing Spray and After-Sun
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`Aloe Vera Moisturizing Gel (the “Products”) that are contaminated with the carcinogenic
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`impurity benzene. Plaintiff makes the following allegations pursuant to the investigation of her
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`counsel and based upon information and belief, except as to the allegations specifically
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`pertaining to Plaintiff herself, which are based on personal knowledge.
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`FACTS COMMON TO ALL CLAIMS
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`1.
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`This is a class action lawsuit against Defendant for the manufacture and sale of
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`the Products, which were defective because they contain benzene, a carcinogenic chemical
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`impurity that has been linked to leukemia and other cancers. The Products are not designed to
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`contain benzene (nor is the presence of benzene disclosed in any way on the Products’ labels),
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`and in fact no amount of benzene is acceptable in the Products. However, Defendant’s Products
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`not only contained benzene, but many contained benzene at levels far exceeding acceptable
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`limits set by the United States Food & Drug Administration (“FDA”), including even emergency
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`1
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`Case 1:22-cv-01013 Document 1 Filed 02/04/22 Page 2 of 19
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`interim limits. The presence of benzene in the Products renders them unsafe and worthless, and
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`unsuitable for their principal and intended purpose.
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`2.
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`Benzene is a component of crude oil, gasoline, and cigarette smoke, and is one of
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`the elementary petrochemicals. The Department of Health and Human Services has determined
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`that benzene causes cancer in humans. Likewise, the FDA lists benzene as a “Class 1 solvent”
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`that “should not be employed in the manufacture of drug substances, excipients, and drug
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`products because of [its] unacceptable toxicity.” The World Health Organization (“WHO”) and
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`the International Agency for Research on Cancer (“IARC”) have classified benzene as a Group 1
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`compound, defining it as “carcinogenic to humans.”1 In 2011, the United States Environmental
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`Protection Agency introduced regulations that lowered limits on benzene in gasoline due to its
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`carcinogenic nature.2 California’s Proposition 65 Fact Sheet for benzene states, “[b]enzene is on
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`the Proposition 65 list because it can cause cancer and birth defects or other reproductive harm.
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`Exposure to benzene can cause leukemia. Exposure to benzene during pregnancy may affect
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`development of the child. It may also harm the male reproductive system.”3
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`3.
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`According to the American Cancer Society:
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`IARC classifies benzene as “carcinogenic to humans,” based on
`sufficient evidence that benzene causes acute myeloid leukemia
`(AML). IARC also notes that benzene exposure has been linked
`with acute lymphocytic leukemia (ALL), chronic lymphocytic
`leukemia (CLL), multiple myeloma, and non-Hodgkin lymphoma.4
`
`
`
`1 https://monographs.iarc.who.int/list-of-classifications
`2 https://www.epa.gov/gasoline-standards/gasoline-mobile-source-air-toxics
`3 https://www.p65warnings.ca.gov/fact-sheets/benzene
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`4 American Cancer Society. Benzene and Cancer Risk (January 5, 2016)
`(https://www.cancer.org/cancer/cancer-causes/benzene.html)
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`4.
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`According to the National Institute for Occupational Safety and Health, humans
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`can become exposed to benzene through “inhalation, skin absorption, ingestion, skin and/or eye
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`contact.” 5
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`5.
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`While investigating the carcinogenic potential of active ingredients in sun care
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`products, Valisure, an online pharmacy registered with the FDA, recently detected high levels of
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`benzene, a known human carcinogen, in the Products.
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`6.
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`Valisure tested Defendant’s Products listed below using a sophisticated gas
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`chromatography flame ionization test modified to follow FDA guidance for impurities detection.
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`Valisure’s testing revealed quantities of benzene in the Products in excess of the “FDA
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`concentration limit of 2 parts per million (ppm).” 6
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`7.
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`Defendant’s Products contained among the highest concentrations of benzene of
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`all of the products tested by Valisure. For example, Defendant’s After-Sun Aloe Vera Soothing
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`Spray, Lot No. 8140449A, contained between 4.55 and 4.71 ppm of benzene, over double the
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`interim limit of 2 ppm set by the FDA.7 Another tested lot, 4111849A, contained between 3.58
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`and 3.93 ppm of benzene, also well above FDA interim limits.8 The gel Product and an
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`additional tested lot of the spray Product also tested positive for benzene.9
`
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`5 National Institute for Occupational Safety and Health (NIOSH), Benzene,
`https://www.cdc.gov/niosh/npg/npgd0049.html.
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`6 Valisure, Valisure Citizen Petition on Benzene in Sunscreen and After-sun Care products, May
`24, 2021 (“Valisure Petition”), https://www.valisure.com/blog/valisure-news/valisure-detects-
`benzene-in-sunscreen/, at 1.
`7 Id., at 12.
`8 Id.
`9 Id. at 13.
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`8.
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`Following the Valisure petition, on or around July 15, 2021, Defendant
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`announced it was halting the sale of the Products “found to contain the carcinogen benzene.”10
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`9.
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`Benzene is not listed as an ingredient on the Products’ labels. Defendant does not
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`disclose the actual or potential presence of benzene in its Products at all on the Product’s
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`labeling, or in any advertising or website promoting the Product.
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`10.
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`The Products are regulated by the FDA as cosmetics pursuant to the federal Food,
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`Drug and Cosmetics Act (“FDCA”), 21 U.S.C. § 301 et seq., as well as analogous state statutes
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`and regulations. The FDCA “prohibits the distribution of cosmetics which are adulterated or
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`misbranded. A cosmetic is considered adulterated if it contains a substance which may make
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`the product harmful to consumers under customary conditions of use.”11 21 U.S.C. § 361.
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`11.
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`Further, as cosmetics regulated by the FDA, the Products must “bear a warning
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`statement whenever necessary or appropriate to prevent a health hazard that may be associated
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`with the product.” 21 C.F.R. § 740.1(a).
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`12.
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`Defendant disregarded the laws and regulations outlined above. As a
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`manufacturer, distributor, and seller of a cosmetics product, Defendant had and has a duty to
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`ensure that its Products did not contain excessive (or any) levels of benzene, including through
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`regular testing. But based on Valisure’s testing results set forth above, Defendant made no
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`reasonable effort to test its Products for benzene or other impurities. Nor did it disclose to
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`Plaintiff or any other consumers in any product advertising, labeling, packaging, or marketing
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`10 https://www.bloomberg.com/news/articles/2021-07-15/cvs-halts-sales-of-two-of-its-store-
`brand-sun-care-
`products#:~:text=CVS%20Health%20Corp.%20has%20halted,also%20contaminated%20with%
`20the%20chemical. (last visited 1/26/22).
`11 https://www.fda.gov/cosmetics/cosmetics-labeling-regulations/summary-cosmetics-labeling-
`requirements#Adulterated (emphasis added).
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`Case 1:22-cv-01013 Document 1 Filed 02/04/22 Page 5 of 19
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`that its Products contained benzene, let alone at levels in certain Products that are many multiples
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`of the emergency, interim limit set by the FDA. To the contrary, Defendant represented and
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`warranted, expressly and impliedly, that the Products were of merchantable quality, complied
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`with federal and state law, and did not contain carcinogens, reproductive toxins, or other
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`impurities such as benzene.
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`13.
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`If Defendant had fulfilled its quality assurance obligations, Defendant would have
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`identified the presence of the benzene contaminant almost immediately.
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`14.
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`Further, had Defendant adequately tested its Products for benzene and other
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`carcinogens, reproductive toxins, and impurities, it would have discovered that its Products
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`contained benzene at levels above the FDA’s limit (to the extent even applicable), making those
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`products ineligible for distribution, marketing, and sale.
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`15.
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`Instead, Defendant introduced contaminated, adulterated, and/or misbranded
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`Products containing dangerous amounts of benzene into the U.S. market.
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`16.
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`Defendant also knew or should have known about the carcinogenic potential of
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`benzene because it is classified as a Group 1 compound by the WHO and the IARC, meaning
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`that it is “carcinogenic to humans.”
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`17.
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`The presence of benzene renders the Products both adulterated and misbranded
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`under the FDCA because benzene is a substance that makes the Products harmful to consumers
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`under customary conditions of use.
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`18.
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`Further, the Products are misbranded because their labeling is “false” and
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`“misleading” because it does not disclose the presence of benzene, even though a warning
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`statement concerning benzene is necessary or appropriate to prevent a health hazard. 21 C.F.R. §
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`740.1(a).
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`19.
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`Under federal law, a product that is “adulterated” or “misbranded” cannot legally
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`be manufactured, advertised, distributed, or sold. 21 U.S.C. § 331(a). Adulterated and
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`misbranded products thus have no economic value and are legally worthless. Notably, Plaintiff
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`does not bring claims under the FDCA and does not seek to enforce federal law in this lawsuit.
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`Instead, Plaintiff brings state law causes of action that arise regardless of the Products’
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`classification under the FDCA. That the Products are in fact adulterated and misbranded simply
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`underscores the unmerchantable nature of the Products.
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`20. When Plaintiff purchased Defendant’s Products, Plaintiff did not know, and had
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`no reason to know, that Defendant’s Products were contaminated with benzene, adulterated and
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`misbranded, and thus unlawful to sell or purchase as set forth herein. Not only would Plaintiff
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`not have purchased Defendant’s Products at all had she known the Products contained benzene,
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`she would not have been capable of purchasing them if Defendant had done as the law required
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`and tested those products for benzene and other carcinogens, reproductive toxins, and impurities.
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`21. Moreover, no reasonable consumer would have paid any amount for products
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`containing benzene, a known carcinogen and reproductive toxin, much less above the limits set
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`by the FDA (even assuming those allowances apply to Defendant’s products).
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`22.
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`Thus, if Plaintiff and Class members had been informed that Defendant’s
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`Products contained or may contain benzene, they would not have purchased or used the Products
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`at all, or would have paid significantly less for the Products, making such omitted facts material
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`to them.
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`23.
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`Plaintiff and Class members were injured by the full purchase price of the
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`Products because the Products are worthless, as they are adulterated and contain harmful levels
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`of benzene. Such illegally sold products are worthless and have no value. See Debernardis v. IQ
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`Case 1:22-cv-01013 Document 1 Filed 02/04/22 Page 7 of 19
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`Formulations, LLC, 942 F.3d 1076, 1085 (11th Cir. 2019); see also In re Valsartan, Losartan, &
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`Irbesartan Prod. Liab. Litig., 2021 WL 222776, at *16 (D.N.J. Jan. 22, 2021) (“This Court finds
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`that contaminated drugs are economically worthless at the point of sale by virtue of the
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`dangerousness caused by their contamination, regardless whether the sold VCDs actually
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`achieved the medical purpose of lowering blood pressure. Put differently, contaminated drugs,
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`even if medically efficacious for their purpose, cannot create a benefit of the bargain because the
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`contaminants, and their dangerous effects, were never bargained for.”).
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`24.
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`Plaintiff and Class members bargained for Products free of contaminants and
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`dangerous substances, and were deprived the basis of their bargain when Defendant sold them
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`products containing the dangerous substance benzene, which rendered the Products
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`unmerchantable and unfit for use.
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`25.
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`Plaintiff and Class members are further entitled to damages for the monies paid to
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`purchase the Products, statutory and punitive damages, attorneys’ fees and costs, and restitution.
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`26.
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`Plaintiff brings this action on behalf of herself and the Class for equitable relief
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`and to recover damages and restitution for: (i) breach of implied warranty; (ii) unjust enrichment;
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`(iii) violation of New York General Business Law (“GBL”) § 349; and (iv) violation of GBL §
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`350.
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`PARTIES
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`Plaintiff Jasmine Lerner is a resident of Brooklyn, New York and has an intent to
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`27.
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`remain there, and is therefore a domiciliary of New York. In or around June 2019, Ms. Lerner
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`purchased Defendant’s After-Sun Aloe Vera Soothing Spray from a CVS location in New York,
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`New York. When purchasing the Product, Ms. Lerner reviewed the accompanying labels and
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`disclosures, and understood them as representations and warranties by the manufacturer that the
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`Case 1:22-cv-01013 Document 1 Filed 02/04/22 Page 8 of 19
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`Product was properly manufactured, free from defects, safe for its intended use, not adulterated
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`or misbranded, and legal to sell. Ms. Lerner relied on these representations and warranties in
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`deciding to purchase the Product manufactured by Defendant, and these representations and
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`warranties were part of the basis of the bargain, in that she would not have purchased the Product
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`from Defendant if she had known that it was not, in fact, properly manufactured, free from
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`defects, safe for its intended use, adulterated and misbranded, and legal to sell. The Product
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`Plaintiff purchased was contaminated with benzene, therefore rendering it improperly
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`manufactured, defective, not safe for its intended use, adulterated and misbranded, and illegal to
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`sell.
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`28.
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`Defendant CVS Health Corporation is a corporation organized under the laws of
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`the State of Rhode Island and Providence Plantations and maintains its principal place of
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`business at One CVS Drive, Woonsocket, Rhode Island 02895. Defendant sold the contaminated
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`Products at its retail locations and online in the state of New York and nationwide.
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`JURISDICTION AND VENUE
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
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`29.
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`1332(d)(2)(A), as modified by the Class Action Fairness Act of 2005, because at least one
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`member of the Class, as defined below, is a citizen of a different state than Defendant, there are
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`more than 100 members of the Class, and the aggregate amount in controversy exceeds
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`$5,000,000 exclusive of interest and costs.
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`30.
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`This Court has personal jurisdiction over Defendant because Plaintiff purchased
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`the Products in this District.
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`31.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because it is the
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`District in which a substantial part of the events or omissions giving rise to the claim occurred.
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`Case 1:22-cv-01013 Document 1 Filed 02/04/22 Page 9 of 19
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`CLASS ACTION ALLEGATIONS
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`Plaintiff seeks to represent a class defined as all persons in the United States who
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`32.
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`purchased the Products (the “Class”).
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`33.
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`Plaintiff also seeks to represent a subclass of all Class members who purchased
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`the Products in New York (the “Subclass”).
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`34.
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`35.
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`The Class and New York Subclass are collectively referred to as the “Classes.”
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`Subject to additional information obtained through further investigation and
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`discovery, the foregoing definitions of the Classes may be expanded or narrowed by amendment
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`to the complaint or narrowed at class certification.
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`36.
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`Specifically excluded from the Classes are Defendant, Defendant’s officers,
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`directors, agents, trustees, parents, children, corporations, trusts, representatives, employees,
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`principals, servants, partners, joint ventures, or entities controlled by Defendant, and its heirs,
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`successors, assigns, or other persons or entities related to or affiliated with Defendant and/or
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`Defendant’s officers and/or directors, the judge assigned to this action, and any member of the
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`judge’s immediate family.
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`37.
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`Numerosity. The members of the proposed Classes are geographically dispersed
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`throughout the United States and are so numerous that individual joinder is impracticable. Upon
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`information and belief, Plaintiff reasonably estimates that there are hundreds of thousands of
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`individuals that are members of the proposed Classes. Although the precise number of proposed
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`members are unknown to Plaintiff, the true number of members of the Classes are known by
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`Defendant. Members of the Classes may be notified of the pendency of this action by mail
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`and/or publication through the distribution records of Defendant.
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`38.
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`Typicality. The claims of the representative Plaintiff are typical of the claims of
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`the Classes in that the representative Plaintiff, like all members of the Classes, purchased the
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`Case 1:22-cv-01013 Document 1 Filed 02/04/22 Page 10 of 19
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`Products, which were worthless due to the presence of benzene, a harmful and carcinogenic
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`chemical impurity. Plaintiff has been damaged by Defendant’s misconduct in the very same way
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`as the members of the Classes. Further, the factual bases of Defendant’s misconduct are
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`common to all members of the Classes and represent a common thread of misconduct resulting
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`in injury to all members of the Classes.
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`39.
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`Existence and predominance of common questions of law and fact. Common
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`questions of law and fact exist as to all members of the Classes and predominate over any
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`questions affecting only individual members of the Classes. These common legal and factual
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`questions include, but are not limited to, the following:
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`(a) whether the Products manufactured by Defendant contain dangerously
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`high levels of benzene;
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`(b) whether Defendant is liable to Plaintiff and the Classes for unjust
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`enrichment;
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`(c) whether the Products were unmerchantable and unfit for their intended
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`use;
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`(d) whether Plaintiff and the Classes have sustained monetary loss and the
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`proper measure of that loss;
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`(e) whether Plaintiff and the Classes are entitled to restitution and
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`disgorgement from Defendant; and
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`(f) whether the marketing, advertising, packaging, labeling, and other
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`promotional materials for the Products are deceptive.
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`40.
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`Adequacy of Representation. Plaintiff will fairly and adequately protect the
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`interests of the Classes. Plaintiff has retained counsel who are highly experienced in complex
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`consumer class action litigation, and Plaintiff intends to vigorously prosecute this action on
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`behalf of the Classes. Plaintiff has no interests that are antagonistic to those of the Classes.
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`41.
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`Superiority. A class action is superior to all other available means for the fair
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`and efficient adjudication of this controversy. The damages or other financial detriment suffered
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`by members of the Classes are relatively small compared to the burden and expense of individual
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`litigation of their claims against Defendant. It would, thus, be virtually impossible for members
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`of the Classes, on an individual basis, to obtain effective redress for the wrongs committed
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`against them. Furthermore, even if members of the Classes could afford such individualized
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`litigation, the court system could not. Individualized litigation would create the danger of
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`inconsistent or contradictory judgments arising from the same set of facts. Individualized
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`litigation would also increase the delay and expense to all parties and the court system from the
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`issues raised by this action. By contrast, the class action device provides the benefits of
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`adjudication of these issues in a single proceeding, economies of scale, and comprehensive
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`supervision by a single court, and presents no unusual management difficulties under the
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`circumstances.
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`42.
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`In the alternative, the Classes may be certified because:
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`(a)
`
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`(b)
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`the prosecution of separate actions by individual members of the
`Classes would create a risk of inconsistent or varying adjudication
`with respect to individual members of the Classes that would
`establish incompatible standards of conduct for the Defendant;
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`the prosecution of separate actions by individual members of the
`Classes would create a risk of adjudications with respect to them
`that would, as a practical matter, be dispositive of the interests of
`other members of the Classes not parties to the adjudications, or
`substantially impair or impede their ability to protect their interests;
`and/or
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`(c) Defendant has acted or refused to act on grounds generally
`applicable to the Classes as a whole, thereby making appropriate
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`Case 1:22-cv-01013 Document 1 Filed 02/04/22 Page 12 of 19
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`final declaratory and/or injunctive relief with respect to the members
`of the Class as a whole.
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`
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`CAUSES OF ACTION
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`COUNT I
`Breach of Implied Warranty
`(On Behalf Of Plaintiff And The Nationwide Class And New York Subclass)
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`Plaintiff incorporates by reference and re-alleges herein all paragraphs alleged
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`43.
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`above.
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`44.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed Class and New York Subclass against Defendant.
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`45.
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`Defendant, as the designer, manufacturer, marketer, distributor, and/or seller,
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`impliedly warranted that the Products (i) would not contain elevated levels of benzene and (ii)
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`are generally recognized as safe for human use.
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`46.
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`Defendant breached the warranty implied in the contract for the sale of the
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`defective Products because they could not pass without objection in the trade under the contract
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`description, the Products were not of fair or average quality within the description, and the
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`Products were unfit for their intended and ordinary purpose because the Products manufactured,
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`distributed, and sold by Defendant were defective in that they contained elevated levels of
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`carcinogenic and toxic benzene, and as such are not generally recognized as safe for human use.
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`As a result, Plaintiff and members of the Classes did not receive the goods as impliedly
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`warranted by Defendant to be merchantable.
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`47.
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`Plaintiff and members of the Classes purchased the Products in reliance upon
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`Defendant’s skill and judgment and the implied warranties of fitness for the purpose.
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`48.
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`49.
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`The Products were not altered by Plaintiff or members of the Classes.
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`The Products were defective when they left the exclusive control of Defendant.
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`50.
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`Defendant knew that the Products would be purchased and used without
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`additional testing by Plaintiff and members of the Classes.
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`51.
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`The Products were defectively manufactured and unfit for their intended purpose,
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`and Plaintiff and members of the Classes did not receive the goods as warranted.
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`52.
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`As a direct and proximate cause of Defendant’s breach of the implied warranty,
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`Plaintiff and members of the Classes have been injured and harmed because: (a) they would not
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`have purchased the Products on the same terms if they knew that the Products contained harmful
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`levels of benzene and are not generally recognized as safe for human use; and (b) the Products
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`do not have the characteristics, ingredients, uses, or benefits as promised by Defendant.
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`53.
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`On February 3, 2022, prior to filing this action, Defendant was served with a pre-
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`suit notice letter on behalf of Plaintiff that complied in all respects with U.C.C. §§ 2-313 and 2-
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`607. Plaintiff’s counsel sent Defendant a letter advising Defendant that it breached an implied
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`warranty and demanded that Defendant make full restitution by refunding the monies received
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`therefrom. A true and correct copy of Plaintiff’s counsel’s letter is attached hereto as Exhibit 1.
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`COUNT II
`Unjust Enrichment
`(On Behalf Of Plaintiff And The Nationwide Class And New York Subclass)
`
`Plaintiff incorporates by reference and re-alleges herein all paragraphs alleged
`
`54.
`
`above.
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`55.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed Class and New York Subclass against Defendant.
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`56.
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`Plaintiff and Class members conferred benefits directly on Defendant by
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`purchasing the Products, and Defendant unjustly and inequitably retained the benefits because it
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`Case 1:22-cv-01013 Document 1 Filed 02/04/22 Page 14 of 19
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`retained profits and the revenue from the sale of the Products even though the Products cannot be
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`used for their principal intended purpose and are worthless due to the presence of benzene.
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`57.
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`Defendant has been unjustly enriched in retaining the revenues derived from
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`Plaintiff’s and Class members’ purchases of the Products. Retention of those moneys under
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`these circumstances is unjust and inequitable because Defendant failed to disclose that the
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`Products were unfit for use as after-sun aloe vera products, or that the Defect was substantially
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`likely to manifest through the customary and intended use of the Products. These omissions
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`caused injuries to Plaintiff and Class members because they would not have purchased the
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`Products if the true facts were known.
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`58.
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`Retention of those moneys also is unjust and inequitable because Defendant
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`knows the Products are defective and has withdrawn them from the market, but has not provided
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`a refund to Plaintiff or members of the Classes.
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`59.
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`Because Defendant’s retention of the non-gratuitous benefits conferred on it by
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`Plaintiff and Class members is unjust and inequitable, Defendant must pay restitution and other
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`relief to Plaintiff and Class members for its unjust enrichment, as ordered by the Court.
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`COUNT III
`Violation Of New York’s General Business Law § 349
`(On Behalf Of Plaintiff And The New York Subclass)
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`Plaintiff hereby incorporates by reference the allegations contained in all
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`60.
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`preceding paragraphs of this complaint.
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`61.
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`Plaintiff brings this claim individually and on behalf of the proposed New York
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`Subclass against Defendant.
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`62.
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`New York’s General Business Law § 349 prohibits deceptive acts or practices in
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`the conduct of any business, trade, or commerce.
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`Case 1:22-cv-01013 Document 1 Filed 02/04/22 Page 15 of 19
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`63.
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`In its sale of goods throughout the State of New York, Defendant conducts
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`business and trade within the meaning and intendment of New York’s General Business Law §
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`349.
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`64.
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`Plaintiff and members of the New York Subclass are consumers who purchased
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`products from Defendant for their personal use.
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`65.
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`By the acts and conduct alleged herein, Defendant has engaged in deceptive,
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`unfair, and misleading acts and practices, which include, without limitation, representing that the
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`Products were after-sun aloe vera Products that could be used for those purposes, and by failing
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`to disclose the presence of benzene in the Products.
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`66.
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`67.
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`The foregoing deceptive acts and practices were directed at consumers.
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`The foregoing deceptive acts and practices are misleading in a material way
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`because they fundamentally misrepresent the characteristics of the Products to induce consumers
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`to purchase same. Defendant’s omissions of fact were material because if Plaintiff and members
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`of the New York Subclass were apprised of the true nature of the Products, namely that the
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`Products contained benzene and were unsafe and unfit for use, they would have been aware of
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`that fact and would not have purchased the Products.
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`68.
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`By reason of this conduct, Defendant engaged in deceptive conduct in violation of
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`New York’s General Business Law.
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`69.
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`Defendant’s actions are the direct, foreseeable, and proximate cause of the
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`damages that Plaintiff and members of the New York Subclass have sustained from having paid
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`for and consumed Defendant’s products.
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`70.
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`As a result of Defendant’s violations, Plaintiff and members of the New York
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`Subclass have suffered damages because: (a) they would not have purchased the Products on the
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`Case 1:22-cv-01013 Document 1 Filed 02/04/22 Page 16 of 19
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`same terms if they knew that the Products contained benzene, and are not generally recognized
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`as safe; (b) they would not have purchased the Products or would not have purchased them on
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`the same terms if they knew that the Products could not be used as after-sun aloe vera products;
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`(c) they paid a price premium for the Products due to Defendant’s omission of the fact that the
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`Products contained benzene and the misrepresentations that the Products could be used as after-
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`sun aloe vera products; and (d) the Products do not have the characteristics, ingredients, uses,
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`benefits, or quantities as promised.
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`71.
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`On behalf of herself and other members of the New York Subclass, Plaintiff seeks
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`to recover her actual damages or fifty dollars, whichever is greater, three times actual damages,
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`and reasonable attorneys’ fees.
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`COUNT IV
`Violation Of New York’s General Business Law § 350
`(On Behalf Of Plaintiff And The New York Subclass)
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`Plaintiff hereby incorporates by reference the allegations contained in all
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`72.
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`preceding paragraphs of this complaint.
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`73.
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`Plaintiff brings this claim individually and on behalf of the proposed New York
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`Subclass against Defendant.
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`74.
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`New York’s General Business Law § 350 prohibits false advertising in the
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`conduct of any business, trade, or commerce.
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`75.
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`Pursuant to said statute, false advertising is defined as “advertising, including
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`labeling, of a commodity … if such advertising is misleading in a material respect.”
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`76.
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`Based on the foregoing, Defendant has engaged in consumer-oriented conduct
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`that is deceptive or misleading in a material way which constitutes false advertising in violation
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`of Section 350 of New York’s General Business Law.
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`77.
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`Defendant engaged in a material misrepresentation by representing that the
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`Products were after-sun aloe vera Products that were fit for their intended use and contained only
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`the active ingredients stated on the label. Defendant materially omitted the true facts regarding
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`the Products, namely that they contained benzene and were unsafe and unfit for their intended
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`use.
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`78.
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`Defendant’s false, misleading, and deceptive statements and representations of
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`fact and omissions were and are directed to consumers.
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`79.
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`Defendant’s false, misleading, and deceptive statements and representations of
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`fact and omissions were and are likely to mislead a reasonable consumer acting reasonably under
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`the circumstances.
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`80.
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`Defendant’s false, misleading, and deceptive statements and representations of
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`fact and omissions have resulted in consumer injury or harm to the public interest.
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`81.
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`As a result of Defendant’s false, misleading, and deceptive statements and
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`representations of fact and omissions, Plaintiff and the New York Subclass have suffered
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`economic injury because the Products were worthless and Plaintiff and the New York Subclass
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`paid a price premium for the Products in the amount of the full purchase price of the Products.
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`82.
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`As a result of Defendant’s violations, Plaintiff and members of the New York
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`Subclass have suffered damages because: (a) they would not have purchased the Products on the
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`same terms if they knew that the Products contained benzene, and are not generally recognized
`
`as safe; (b) they would not have purchased the Products or would not have purchased them on
`
`the same terms if they knew that the Products could not be used as after-sun aloe vera products;
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`(c) they paid a price premium for the Products due to Defendant’s omission of the fact that the
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`Products contained benzene and the misrepresentations that the Products could be used as after-
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`Case 1:22-cv-01013 Document