Revlon Age Defying Deceptive Marketing Class Action Will Continue

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Revlon Consumer Products Corp. has dodged several of the allegations in a false advertising class action lawsuit, over the company’s claims that its “Age Defying with DNA Advantage” products are able to change the genetic code of a person’s skin.

Six of the 15 allegations that Revlon was facing in the class action lawsuit filed by plaintiffs Anne Elkind and Sharon Rosen will remain, U.S. District Judge Joanna Seybert of a New York federal court said in her ruling. She explained that the plaintiffs may not seek injunctive relief for a product that the don’t plan to purchase again and there is no risk for “future harm.”

In addition, the plaintiffs admit that they only purchased the foundation and concealer, not the powder.

Because of that reason, the judge says she agrees that the “plaintiffs lack standing to bring those claims” regarding “advertising of the powder.”

The Revlon class action lawsuit will now move to the discovery phase of the process.

Judge Seybert said that Elkind and Rosen may continue their deceptive marketing claims, saying that she agreed that under definitions established by the Food, Drug and Cosmetic Act that the Revlon “Age Defying with DNA Advantage” product should be considered drugs. However, she said the the federal law prevented them from pursuing mislabeling claims.

Elkind and Rosen charged Revlon with violating two different parts New York’s false advertising law, negligent misrepresentation, intentional misrepresentation, unfair competition in violation of California business law, California’s false advertising law, California Civil Code, breach of express warranty under New York law, breach of implied warranty of merchantability under New York law, breach of implied warranty of fitness under New York law, breach of express warranty in violation of California law, breach of implied warranty of fitness under California law, unjust enrichment, and restitution.

Judge Seybert said that the allegations fall into two categories: deceptive marketing claims and mislabeling claims.

“First, Plaintiffs allege that Defendant’s using the phrase ‘Age Defying with DNA Advantage’ on the Products’ labels and in other marketing duped them into believing that the product would favorably interact with their DNA on a molecular level. These allegations form the basis of Plaintiffs’ second, third, fourth, sixth, and seventh through thirteenth causes of action,” Judge Sebert writes in her ruling.

“Second, because the phrase ‘Age Defying with DNA Advantage,’ manifests an intent that the Products be used to manipulate the cells, the Products are over-the-counter drugs, as defined by the Federal Food, Drug, and Cosmetic Act (FDCA). And as such, the Powder and Concealer are mislabeled because they do not comply with the FDCA’s drug labeling requirement that all of a drug’s ingredients be listed, and they therefore violate New York and California laws,” she explained further.

The mislabeling allegations “do not squeak through the ‘narrow gap through which a plaintiff’s state-law claim must fit if it is to escape express or implied pre-emption,'” according to the New York federal judge.

However, Judge Seybert said that she disagreed with Revlon when the company argued that the class action lawsuit ought to be dismissed because of the doctrine of primary jurisdiction.

Although Revlon is facing another class action lawsuit in the same district over the same allegations, she said that there is no reason to be concerned about conflicting rulings by that court or by the FDA because a ruling was not likely to happen any time soon.

Revlon wanted the fraud charges dismissed, which Judge Seybert denied. However, she did toss the implied warranty claims and unjust enrichment claims, while keeping the express warranty allegations.

In the Revlon class action lawsuit filed in April 2014, Elkind and Rosen had alleged that the “Age Defying with DNA Advantage” products were nothing more than sunscreen and did not contain the benefits that Revlon advertised.

Revlon is represented by Jill Barnhart and Nelson A. Boxer of Petrillo Klein & Boxer LLP and Patricia Glaser and Sean Riley of Glaser Weil.

The plaintiffs are represented by the Law Offices of Ronald A. Marron APLC and the Law Office of Jack Fitzgerald PC.

The Revlon False Advertising Class Action Lawsuit is Elkind et al v. Revlon Consumer Products, Case No. 2:14-cv-02484, in the U.S. District Court for the Eastern District of New York.

UPDATE: The Revlon DNA Advantage Cosmetics Class Action Settlement is now open! Click here to file a claim.

UPDATE 2: On Nov. 18, 2017, Top Class Actions viewers started receiving checks in the mail worth as much as $7.61 from a class action settlement involving allegations that Revlon’s “Age Defying with DNA Advantage” products were falsely advertised.