On June 18, the Ninth Circuit affirmed the Central District of California’s grant of summary judgment on claims asserted against Unilever by various putative classes of consumers who purchased St. Ives facial cleanser. The court agreed with the district court’s holding that the plaintiffs failed to introduce evidence that the “microscopic tears” allegedly caused by Unilever’s facial scrubs led to any concrete injuries.
- In 2016, two plaintiffs filed a putative class action on behalf of consumers who purchased St. Ives facial cleanser in California, New York, and a host of other states. The plaintiffs alleged that the cleanser caused skin damage due to the product’s “overly deep” exfoliation, which resulted in “microscopic tears” to the skin.
- The district court granted Unilever’s motion for summary judgment, finding that—though plaintiffs had offered some factual support that St. Ives disrupted the skin’s protective barrier—they had failed to show that the alleged micro-tears were “a safety hazard” or otherwise differed from the effects of standard exfoliation. Given this failure of proof, the plaintiffs could not show a safety risk capable of triggering a duty to disclose.
- The Ninth Circuit agreed, holding that the plaintiffs had provided no summary judgment evidence linking the “micro-tears” caused by Unilever’s facial scrubs to any concrete injuries.
- The court highlighted the fact that the plaintiffs’ expert had opined only that use of the product as an exfoliating agent “can increase chances” of a host of recognized long-term health risks—but was otherwise unable to observe or quantify any of those risks in his two-week study.
- The court also noted that the evidence showed that the plaintiffs themselves had used the products for years and showed no symptoms of the “dry irritated skin or infections” that their expert warned could be caused by micro-tears.
- The court’s opinion sets an appropriately high threshold for the evidence plaintiffs must introduce to establish that a product poses a safety risk such that the defendant has a duty to disclose. Where the evidence elicited by plaintiffs establishes nothing more than the potential that the product might cause an injury in the future, fraudulent omission claims fail.
- The case is Browning v. Unilever U.S., Inc. Read more here.
