Nivea Consumer Fights Dismissal of Skin Firming Lotion Class Action

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A consumer taking on the maker of Nivea lotion is urging a federal court to reject the company’s bid to dismiss a class action lawsuit that alleges its skin-firming lotion should be labeled as a drug.

Plaintiff Ashley Franz alleges that despite making claims that Nivea Skin Firming Hydration Body Lotion with CoQ10 Plus can tighten and firm skin, the lotion maker never filed a New Drug Application with the U.S. Food and Drug Administration that showed the safety and effectiveness of the product from which the agency could grant approval.

Nivea lotion maker, Beiersdorf Inc., filed a motion to dismiss the case in October, saying Franz failed to cite any FDA guidance or regulation “concluding” that skin firming and tightening claims such as those made on the Nivea labels are drug claims.

In their motion to dismiss, Beiersdorf argued that Nivea lotion is not subject to FDA guidelines and is therefore not misbranded, rendering Franz’ claims as baseless since skin firming and tightening claims are “appearance related” and not representations that the product will structurally change skin.

However, Franz disputes this argument, stating she in fact noted provisions of the Federal Drug and Cosmetic Act (FDCA) and California’s Sherman Food, Drug and Cosmetic Law that defines when a cosmetic is also a drug. Specifically, Franz contends 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).”

Her opposition motion also alleges Nivea’s maker “failed to list the NIVEA CoQ10 ingredients in the proper order as required by federal regulation.” She claims that California’s Sherman law also identifies the product as a drug.

Additionally, Franz contends that relevant case law supports her allegations that Nivea’s intended use is as a cosmetic drug. According to the lawsuit, Nivea’s “promises to do more than alter the skin’s appearance in a superficial way for a short period of time” implies an intended use as a cosmetic drug: “The Third Circuit has held that skin firming and/or tightening representations make the product a drug notwithstanding disclosure that any effect is temporary,” the motion countered.

Franz originally filed the proposed class action lawsuit against Nivea lotion in September 2014, but the case was dismissed in August 2015 after a judge found she did not have enough support for claims that the product misrepresented proof behind its skin-firming claims and misrepresentations about the amount of CoQ10 in the product.

The complaint was amended using the argument that the company’s claims are illegal and render the product a drug. Federal regulations require new drugs to be reviewed by an advisory panel with studies to back up safety and efficacy.

Franz is represented by Patricia Syverson, Elaine Ryan and Manfred Muecke of Bonnett Fairbourn Friedman & Balint PC, and Stewart Weltman and Max Stein of Boodell & Domanskis LLC.

The Nivea Skin Firming Lotion 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.