Court Denies Class Certification To Plaintiffs Suing Cosmetics Chain for Marketing “Vegan” Products That Contained Animal-Derived Ingredients

On April 7, 2024, Justice Andrea Masley denied a motion to certify three classes of plaintiffs claiming that the retail cosmetics chain Ultra marketed products as “vegan” that contain an animal-derived ingredient called carmine. The plaintiffs in Sarah Hogan, et al. v. Ultra Salon, Cosmetics & Fragrance, Inc., Index No. 651986/2020, sought to represent individuals who had bought certain online products from Ultra in New York, California, and Illinois from May 26, 2017, to the present. But the Court found that plaintiffs had failed to satisfy the factors of commonality and typicality required for certification. With regard to commonality in particular, the Court held that the plaintiffs had not presented a theory of damages amenable to a class action given their failure to show any “price premium” for vegan products. It explained:

Plaintiffs are essentially demanding a full refund for products they now regret having purchased and used after discovering the true ingredients. Other than their dismay that the cosmetics contained unwanted insect-derived coloring, they do not allege that the products did not serve their intended purpose. Absent proof that the products’ prices were actually inflated or that the products adversely affected plaintiffs’ health, they may not recover. . . . The deception and mislabeling alone cannot suffice to be the injury.

The attorneys at Schlam Stone & Dolan frequently litigate class action lawsuits and issues of certifying a class. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.