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Nivea’s maker must face a class action lawsuit over claims that one of its skin firming lotions is a drug and therefore requires government approval that it does not have.
According to a California federal judge, the customer who filed the case presented information that is plausible enough for the Nivea class action lawsuit to proceed in court.
Beiersdorf Inc. made a move to dismiss the Nivea class action lawsuit, which U.S. District Judge Larry Alan Burns denied last week.
Judge Burns says that at this stage, the court cannot make a determination of whether or not the lotion is a drug, and he went on to say that the customer who filed the Nivea class action lawsuit effectively established her argument that the lotion is a drug.
According to Judge Burn, “The court is not deciding that the lotion is a drug. That’s a factual question not suitable for resolution at this stage of the litigation. It is simply determining that Franz’s claims clear the relatively low bar of plausibility.”
The Nivea class action lawsuit was filed by Ashley Franz in September 2014. She amended her claim to its current iteration in October 2016. She alleges that Beirsdorf should classify its Nivea Skin Firming Hydration Body Lotion as a drug and therefore should have submitted it to the FDA’s New Drug Application process.
She says that the product functions as a drug because the product allegedly tightens and firms skin enough to make it fit the government’s perception of a drug.
However, Beiersdorf Inc. fired back at this claim, saying that the product is not a drug. The company says that the product’s label appropriately classifies it as a cosmetic moisturizer and not a drug. According to the company, the advertisements around the lotion were just “appearance related.”
The Nivea lotion class action lawsuit went through a fair amount of back and forth. In 2016, the company made a move to have the claims dismissed after Franz edited her lawsuit.
The company said that Franz failed to cite the FDA guidance or regulation that would require the Nivea lotion to be classified as a drug. Franz continued to fight this effort, urging a federal court to reject Beiersdorf’s effort to dismiss the claims.
In 2017, Judge Burns did indeed dismiss Franz’s suit, saying that Franz’s claim did not involve an amount of money high enough give the court jurisdiction over her state law claims.
This decision was reversed by a Ninth Circuit court in December. The panel found that Franz did indeed meet the $5 million minimum amount in controversy.
Franz is represented by Patricia N. Syverson, Manfred P. Muecke, Elaine A. Ryan and Nada Djordjevic of Bonnett Fairbourn Friedman & Balint PC, Stewart M. Weltman and Todd L. McLawhorn of Siprut PC and Max A. Stein of Boodell & Domanskis LLC.
The Nivea Lotion Mislabeling Class Action Lawsuit is Franz v. Beiersdorf Inc., Case No. 3:14-cv-02241, in the U.S. District Court for the Southern District of California.
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