Wiggins v. Unilver U.S., Inc.

684 F.Supp.3d 127

Craig WIGGINS, Rebecca Torres, and Charita Harrell,on behalf of themselves and all others similarly situated, Plaintiffs, v. UNILVER UNITED STATES, INC., dba Dove, Defendant.

21 Civ. 1964 (PGG)

United States District Court, S.D. New York

Signed July 26, 2023

James A. Francis, John Soumilas, Lauren KW Brennan, Francis Mailman Soumilas P.C., Philadelphia, PA, Yvette Golan, The Golan Firm PLLC, Washington, DC, Kevin Christopher Mallon, Mallon Consumer Law Group, PLLC, New York, NY, for Plaintiffs Craig Wiggins, Rebecca Torres.

James A. Francis, Francis Mailman Soumilas P.C., Philadelphia, PA, for Plaintiff Charita Harrell.

Jaclyn Marie Metzinger, Genna Shapiro Steinberg, Kelley Drye & Warren LLP, New York, NY, for Defendant.

MEMORANDUM OPINION & ORDER

Paul G. Gardephe, United States District Judge:

Plaintiffs Craig Wiggins, Rebecca Torres, and Charita Harrell bring this class action against Defendant Unilever United States, Inc., pursuant to the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d)(2). (Am. Cmplt. (Dkt. No. 28) ¶ 61) Plaintiffs allege violations of Sections 349 and 350 of the New York General Business Law ("GBL") and violations of similar provisions of California and Pennsylvania law, as well as breach of warranty and unjust enrichment under New York, Pennsylvania, and California law. (Id. ¶¶ 171-255)

Defendant Unilever has moved to dismiss the Amended Complaint, pursuant to (1) Fed. R. Civ. P. 12(b)(1) for lack of standing; (2) Rule 12(b)(2) for lack of personal jurisdiction as to Torres and Harrell's claims; and (3) Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Def. Mot. (Dkt. No. 31))

Unilever's motion to dismiss will be granted as set forth below.

BACKGROUND

I. FACTS

Defendant Unilever manufactures, markets, and sells cosmetic products, including certain "[w]ashes[,] and shampoos," under the "Dove" brand name. Unilever's Dove products are sold throughout the United States. (See Am. Cmplt. (Dkt. No. 28) ¶¶ 3, 5, 60) Unilever labels many of its Dove products as "hypoallergenic," and its baby washes and shampoos make a "tear-free" claim. (Id. ¶¶ 6, 75-77; id., Ex. 1 (Dkt. Nos. 28-1 - 28-7) (product labels)) Two such product labels are shown below:

Image materials not available for display.

(Id. ¶¶ 9-10)

Plaintiff Wiggins alleges that he "regularly purchased Dove's Nourishing Body Wash and Dove's Men + Care Body and Face Wash Sensitive Shield" from the Rite Aid store located at 840 Westchester Avenue, Bronx, New York for "approximately thirty-six months . . . every four to six weeks." (Id. ¶ 21) Plaintiff Torres alleges that she "regularly purchased Dove's Beauty Bar, Deodorant, Dry Skin Relief Body Lotion, and Shampoo Rich Moisture" from the Walmart store located at 5200 Van Buren Boulevard, Riverside, California, and from the Food4Less store located at 4250 Van Buren Boulevard, Riverside, California, for "approximately thirty-six months . . . every two weeks." (Id. ¶ 32) Plaintiff Harrell alleges that she "regularly purchased Dove's Baby Bar Rich Moisture, Lotion Rich Moisture, Night Time Lotion, Nourishing Body Wash, and Tip to Toe Wash Rich Moisture" from the Rite Aid store located at 1105 North 63rd Street, Philadelphia, Pennsylvania for "approximately twenty-four months . . . every two to three weeks." (Id. ¶ 46)

Plaintiffs allege that they have "suffered skin irritation, eye irritation, dermatitis, and/or an allergic skin reaction in the past." (Id. ¶¶ 23, 35, 49) "Like similarly situated consumers," they do "not know the identity of every ingredient" to which they or their families "are allergic . . . [and do] not know [to] which ingredients" they or their families "may develop an allergy." (Id. ¶¶ 25, 37, 51) Plaintiffs further allege that consumers seek products labelled as "hypoallergenic" and "tear free" "to avoid developing a skin allergy," "to avoid the inflammatory cascade caused by an unidentified skin allergen," and to avoid causing "their children to suffer eye irritation or damage during bath time." (Id. ¶ 4) Plaintiffs "saw, relied upon, and reasonably believed the label representation that the products [they purchased] were 'hypoallergenic' " (id. ¶¶ 22, 33, 47), and Plaintiffs Torres and Harrell "saw, relied upon, and reasonably believed the label representation that" certain of the products they purchased were " 'tear free.' " (Id. ¶¶ 34, 48)

According to the Amended Complaint, "a hypoallergenic product does not contain skin allergens in an amount that is known to cause an allergic reaction in a significant number of people." (Am. Cmplt. (Dkt. No. 28) ¶¶ 80-81) Plaintiffs also allege that "[r]easonable consumers believe and expect that a product that is labeled as 'tear-free' does not contain eye irritants or compounds that can cause eye damage at a concentration that could elicit eye irritation and/or eye damage." (Id. ¶ 89) According to Plaintiffs, Unilever utilizes the same definitions in representing that its products are hypoallergenic and tear-free. (See id. ¶ 83 (" 'Look at any of our baby products and you'll see the word 'hypoallergenic' - it's our promise to parents that the entire Baby Dove range has been carefully formulated and tested to ensure it minimizes allergy risks' ") (quoting id., Ex. 4 (Dove website) (Dkt. No. 28-10) at 3)¹; id. ¶ 91 ("[Dove's products have] 'been carefully formulated by our scientists . . . and ophthalmologist-tested to ensure they're mild and won't irritate or sting your baby's eyes.' ") (quoting id., Ex 7 (Dove website) (Dkt. No. 28-13) at 3))

The Amended Complaint claims that Unilever's products are not actually hypoallergenic or tear-free because they all contain (1) ingredients that have been shown to "cause serious eye damage lasting longer than 21 days"; or (2) "skin allergens . . . in an amount that has [ ] been shown to cause an allergic reaction [in] a significant portion of the population" under the United Nation's Globally Harmonized System of Classification and Labeling of Chemicals (the "UN Standards") and as determined by the American Contact Dermatitis Society (the "Dermatitis Society"). (Id. ¶¶ 7-10, 92-115) Under the UN Standards, "a substance is a 'Category 1 skin sensitizer' if it causes an allergic response [in] a significant portion of the population even in extremely small amounts, e.g., = 0.1% intradermal induction dose causes a positive response in more than 30% of guinea pigs in a guinea pig maximization test." (Id. ¶ 93) The Dermatitis Society also publishes a list of "allergens that most frequently cause allergic reactions in human patch tests," which it refers to as "Core Allergens." (Id. ¶ 94)

The Amended Complaint alleges that all Dove "hypoallergenic" products "contain chemicals that are recognized by governmental authorities as skin sensitizers (a.k.a. skin allergens) or by the [Dermatitis Society] as a core allergen." (Id. ¶ 102) These chemicals include "Butylated Hydroxytoluene," "Cetearyl Alcohol," "Cetearyl Glucoside," "DMDM Hydantoin," and "Sodium Laureth Sulfate," among others. (Id. ¶¶ 102, 104-07 (emphasis omitted)) Indeed, the known skin allergen and eye irritant "cocamidopropyl betaine makes up 1-5% of Baby Dove's Tip to Toe wash, an amount far more than the approximately 0.1% concentration shown to cause an allergic response under [UN Standards] testing." (Id. ¶¶ 102-03, 108) Because the Dove products contain these chemicals, they are not hypoallergenic and "tear-free," and the products' labels are accordingly misleading. (Id. ¶¶ 97-101)

The Amended Complaint goes on to allege that "Dove has based its brand as being a trustworthy expert in skin care and baby care, offering information and advice to consumers desiring safe products for sensitive skin." (Id. ¶ 5) Plaintiffs further allege that "[c]onsumers lack the ability to test . . . whether an ingredient is an allergen or an irritant" and that accordingly "[r]easonable consumers [ ] must and do rely on the product company to honestly report the known characteristics of ingredients that are in a product." (Id. ¶¶ 13-14)

Plaintiffs assert that had they "known at the time that [the Dove] products contain[ ] skin sensitizers or [ ] allergens" or "substances that cause skin or eye damage" they "would not have purchased the[ ] products." They further allege that they (1) "purchased, purchased more of, or paid more for, [the Dove] products than [they] would have had [they] known that the products were not hypoallergenic, as promised"; (2) "paid a price premium for a product that was not as represented"; and (3) "were deprived of the benefit of the bargain because [the Dove products] had less value than what was represented." (Id. ¶¶ 27-29, 38, 40-42, 52, 54-56, 150)

Finally, Plaintiffs allege that "[i]f Dove's products were reformulated such that its representations were truthful, Plaintiff[s] [ ] would consider purchasing Dove's products again in the future." (Id. ¶¶ 30, 44, 58)

II. PROCEDURAL HISTORY

The Complaint was filed on March 5, 2021. (Cmplt. (Dkt. No. 1)), and the Amended Complaint was filed on August 18, 2021. (Am. Cmplt. (Dkt. No. 28)). On November 3, 2021, Unilever moved to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1), (b)(2), and (b)(6). (Def. Mot. (Dkt. No. 31))

DISCUSSION

I. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(1)

"[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit ([i.e.,] subject-matter jurisdiction)." Sinochem Int'l Co. Ltd. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

Where subject matter jurisdiction is challenged, a plaintiff "bear[s] the burden of ...