Nivea Class Action Says Skin Firming Lotion is a Mislabeled Drug

A California consumer says Nivea Skin Firming Hydration Body Lotion is mislabeled in a way that violates laws governing the approval and labeling of drugs.

Plaintiff Ashley Franz is suing Connecticut-based Beiersdorf Inc., the maker and seller of Nivea Skin Firming Hydration Body Lotion.

Franz argues that claims on the lotion’s label that it can “firm and tighten skin’s surface” make it a “drug” for purposes of FDA requirements.

It’s therefore subject to the FDA’s New Drug Application and approval requirements, she claims.

However, Beiersdorf never submitted this Nivea lotion to the FDA for approval as a drug before putting it on the market, making it an “illegal product” that violates California business law, Franz argues.

The label on the Nivea lotion at issue says it’s formulated “with Co-Enzyme Q10 Complex and HYDRA IQ Technology.”

According to the Nivea class action lawsuit, the lotion’s front label represents that it “improves skin firmness within 2 weeks,” and its back label says it’s “proven to firm and tighten skin’s surface in as little as two weeks.”

She notes the front label was recently changed to say “improves skin firmness in as little as two weeks.”

Franz argues these representations make this Nivea lotion not just a cosmetic but also a “drug,” as far as FDA regulations governing the labeling and sale of drugs are concerned.

According to Franz, a cosmetic is also a drug under FDA regulations if it is “intended to affect the structure or any function of the body of man.”

She also cites FDA guidance that specifically classifies wrinkle treatments and similar products as “a drug or medical device.”

California law imposes a similar definition of “drug.” Under the Sherman Food, Drug and Cosmetic Law, “drug” is defined as as “[a]ny article other than food, that is used or intended to affect the structure or any function of the body of human beings,” Franz says.

She also alleges the Nivea lotion’s ingredient list is inconsistent with both federal and state laws that require drug labels to list “Active Ingredients” first, followed by “Inactive Ingredients.”

Her Nivea class action lawsuit raises a single claim under the California Business and Professions Code. She argues the defendant violated California business law by selling an illegal product.

Franz says she bought Nivea firming lotion from a CVS store sometime in the summer of 2012. Both Franz and her proposed Class suffered an economic injury by purchasing a product that should never have been on the market, she claims.

Franz proposes to represent a Class of all consumers who purchased Nivea Skin Firming Hydration Body Lotion in California within the applicable statute of limitations period.

She seeks restitution and disgorgement of revenues from Beiersdorf on behalf of herself and the proposed Class Members.

Franz is represented by attorneys Patricia N. Syverson, Elaine A. Ryan and Manfred Muecke of Bonnett Fairbourn Friedman & Balint PC and Stewart M. Weltman and Max 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.

UPDATE: On Oct. 24, 2016, the defendant is seeking dismissal of a class action lawsuit that claims its Nivea Skin Firming Hydration Body Lotion is a misbranded and illegal drug.

UPDATE 2: On Nov. 22, 2016, Franz urged a federal court to reject the company’s bid to dismiss this class action lawsuit by arguing that federal law states a cosmetic is a drug “when its intended use is to affect the structure or function of the body (here to firm and tighten the skin).”