Sarah Mirando  |  October 7, 2013

Category: Legal News

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Kiss My Face False Ad Class Action Lawsuit Survives Dismissal Bid

By Anne Bucher

Kiss My Face class action lawsuitA California federal judge has rejected a motion by Kiss My Face LLC to dismiss a putative false advertising class action lawsuit that accuses the company of misrepresenting its products as organic. The cosmetics company argued that the claims were preempted by federal law.

Plaintiff Matthew Dronkers launched the Kiss My Face class action lawsuit in May 2012, taking issue with an entire line of Kiss My Face products with the label “obsessively organic” on the packaging. He alleges that the products are not really organic: “In reality, they are nothing of the sort,” Dronkers said. “This false marketing — known as ‘greenwashing’ — enables defendants to unfairly capture sales that it would not make but for this deception, and also charges consumers a premium based upon the false perception that the products are organic.”


Dronkers also alleges Kiss My Face deceptively manufactures, markets and sells a variety of consumer products that are packaged with deceptive labels, including moisturizers, shampoo, toothpaste, and hand crèmes.

Kiss My Face argued that Dronkers’ state law claims were preempted by the federal Organic Foods Production Act (OFPA). By filing the class action lawsuit, Dronkers was attempting to enforce the U.S. Department of Agriculture’s National Organic Program labeling requirements through a private cause of action.

U.S. District Judge John A. Houston disagreed with Kiss My Face, finding that OFPA only applies to agricultural products intended for human consumption, not to personal care products.

“The ordinary meaning of ‘human consumption’ includes food but does not include cosmetic products. Only defendant’s inflated definition of agricultural products attempts to clothe cosmetics within the rubric of the OFPA,” Judge Houston said. “As such, the court finds plaintiff’s claims are not expressly preempted by the OFPA.”

Kiss My Face also argued that Dronkers’ claims failed due to “implied conflict preemption,” arguing that allowing the class action lawsuit to proceed would “impose a potentially conflicting set of standards in light of the National Organic Standards Board’s (‘NOSB’) recommendation that the USDA’s enforcement of NOP standards govern personal care products and the NOP review of the recommendation.” Judge Houston disagreed with this claim.

Kiss My Face argued that the USDA changed is policy regarding the NOP to cosmetic and personal care products in a policy statement in 2008, permitting cosmetic, body care and personal care products that contain agricultural ingredients to be certified under the NOP regulations. Judge Houston disagreed, finding that the USDA has taken no formal measures to include these products under the definition of agricultural products according to the NOP.

This class action lawsuit is not the first legal action targeting Kiss My Face’s practice of labeling its products as organic. In 2011, the company was one of 11 companies that settled lawsuits with the nonprofit Center for Environmental Health over claims that their so-called “organic” products failed to meet California’s requirements to earn the “organic” label.

The plaintiff is represented by Behram V. Parekh, Michael L. Kelly and Heather M. Baker.

The Kiss My Face False Advertising Class Action Lawsuit is Matthew Dronkers v. Kiss My Face LLC, et al., Case No. 3:12-cv-01151, in the U.S. District Court for the Southern District of California.

UPDATE: The Kiss My Face False Advertising Class Action Lawsuit was dismissed on January 8, 2014.

 

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One thought on Kiss My Face False Ad Class Action Lawsuit Survives Dismissal Bid

  1. Dana Knight says:

    I am using their products. I have been for years. I really like their products and are now hard to find. How do I file a claim. Thanks.

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