The U.S. District Court for the Southern District of New York has dismissed, without prejudice, a proposed Class Action Complaint against defendant L’Oreal U.S.A., Inc. (“L’Oreal”) alleging its mascara products contained per- and polyfluoroalkyl substances commonly referred to “PFAS.”

Alleging a “price premium” theory of injury, plaintiffs claimed they would not have purchased the L’Oreal products or would have at least paid less for them had they known the mascaras allegedly contained PFAS. Plaintiffs brought claims under alleged violations of New York General Business Law §§ 349, 350, breach of express and implied warranties, fraudulent concealment, and unjust enrichment.

Although Defendant L’Oreal moved pre answer to dismiss on both lack of subject matter jurisdiction and failure to state a cause of action, the court limited its decision to Article III standing. Specifically, Judge John P. Cronan held that plaintiffs had not sufficiently pleaded they suffered an injury in fact due to a failure to allege, plausibly, the specific products plaintiffs purchased contained PFAS. The court also granted plaintiffs leave to amend the complaint.

Decision Focused on Whether Plaintiffs Plausibly Alleged Exposure to PFAS

Plaintiffs brought a proposed class action on behalf of L’Oreal customers from multiple states who had purchased water-proof mascaras, claiming the products contained hazardous substances known as PFAS. No physical injuries were alleged. Instead, plaintiffs claimed that any amount of PFAS exposure was hazardous and that plaintiffs either would not have purchased the mascaras had they known of the alleged PFAS presence or would have paid less for them. As the science regarding PFAS exposure is still in its nascent stage, plaintiffs cited distinguishable EPA standards regarding lifetime exposure to drinking water and claimed tested products from the same product line purchased by plaintiff’s exceeded those standards. While the court acknowledged such a theory of harm might prove false during discovery, it did not find plaintiffs’ assertion fatally implausible at the pleading stage.

The court also did not analyze any of the claims or defenses regarding whether or not L’Oreal had engaged in any act of deception under the GBL or plaintiff’s fraudulent concealment claim. Instead, holding that jurisdictional requirements must be assessed before any analysis of the merits, Judge Cronan’s decision was limited to whether plaintiffs plausibly alleged exposure to PFAS-containing products. Notably, the court rejected L’Oreal arguments about the failure to allege exposure significant enough to cause harm, and instead focused on whether plaintiffs plausibly alleged they were exposed to products that contain any PFAS. Nevertheless, plaintiffs failed to meet even this low bar with the court holding “Plaintiffs have not alleged sufficient facts to allow the inference that the mascaras they individually purchased in fact contained PFAS, or that there as a material risk that they did.”

Judge Rejects Use of PFAS Studies; Allows Plaintiff to Amend Complaint

Notably, none of the products purchased by plaintiffs were tested. Instead, plaintiffs relied largely on a Notre Dame study that tested 231 products and found the presence of fluorine in many. The complaint failed to allege what proportion of the tested products had fluorine. Furthermore, the court rejected the assertion that fluorine was necessarily PFAS just for having the presence of a carbon-fluorine bond as PFAS does.

Similarly, the court took issue with the reliability of another study “arranged” by plaintiffs that looked for 30 forms of PFAS in L’Oreal products, but failed to plead “how many products were tested . . . whether all those tested revealed the presence of PFAS, and if not, what percentage of the products had PFAS.” These deficiencies led the court to conclude plaintiffs had failed to allege an injury in fact because such testing did not “nudge” the prospect of PFAS in L’Oreal products “from conceivable to plausible.” Accordingly, the court dismissed the complaint with leave to amend, allowing plaintiffs to cure these deficiencies.

While this decision does not provide a precedent on the heavily litigated PFAS issues of fraud, breach of warranty, and New York’s General Business Law, it does signal a willingness of courts to hold plaintiffs accountable in pleading their specific testing methods and results in order to plausibly allege actual exposure to PFAS-containing products and move forward under price premium theories of harm.