Unilever Seeks End To Litigation Over St. Ives Scrub, Plaintiffs’ ‘Fake Medical Condition’
This article was originally published in The Rose Sheet
Executive Summary
In April 2017, Unilever failed to dismiss a putative class action in California’s Central District alleging that its St. Ives Apricot Scrub is unfit for sale due to the potential of its crushed walnut shells to cause “microtears” in skin. Now the firm seeks summary judgment in the matter, maintaining that plaintiffs are relying on “junk science” to assert the possibility of a made-up medical condition.
Kaylee Browning et al v. Unilever is a case to follow in California’s Central District, if for no other reason than it makes for highly entertaining reading.
For that there is Unilever counsel to thank.
In a motion for summary judgment filed by Unilever in April, now slated for a Dec. 3 hearing, William Stern, senior counsel at Morrison Foerster, provides an account of the suit’s genesis.
“For decades, Kaylee Browning and Sarah Basile used the St. Ives Apricot Scrub without complaint. Then, one day in mid-2016, each received a phone call from class counsel who said he was ‘investigating’ the harm to skin from walnut shell powder (‘WSP’). He showed them ‘scientific evidence’ – five blog posts attributing statements of ‘aestheticians’ and others saying WSP can cause ‘microtears.’ Both agreed to become class representatives.”
Right away, the numerosity of ironic-reading quotation marks is an index of Unilever’s regard for the litigation, which has occupied the firm for almost two years since plaintiffs filed their suit in December 2016. (Also see "St. Ives Suit Signals Potential Risk In Using Natural Microbead Alternatives" - HBW Insight, 6 Jan, 2017.)
“Whether or not Plaintiffs’ allegation – that crushed walnut shells render a product unfit as a facial scrub – is based on ‘junk science’ is relevant at a later stage of litigation, such as in a motion for summary judgment.” – California Central District Court’s April 2017 order largely denying dismissal
The gravamen of their complaint is that the exfoliating walnut shell powder in St. Ives Apricot Scrub causes microtears in users’ skin that can lead to acne, infection and wrinkles, making the product unfit for sale as a facial scrub.
While the plaintiffs don’t claim to have suffered any physical injuries themselves, they allegedly would not have purchased the product had they known about these purported risks, amounting to an economic injury.
They seek compensation and damages for themselves and similarly situated consumers in California, New York and a long list of other states, as well as injunctive relief, with a bid for class certification filed Oct. 22.
Unilever maintains that the plaintiffs have no standing.
“The term ‘micro-tear’ means nothing,” the firm says, noting that it searched “every dermatology journal ever published,” along with Fitzpatrick’s Synopsis of Clinical Dermatology, WebMD and an online medical dictionary that aggregates more than 40,000 publicly available resources, and turned up not one mention of microtears.
“Plaintiffs may as well allege that [walnut shell powder] hurt their feelings,” Unilever suggests.
The defendant continues, “Like someone faking whiplash, Plaintiffs have invented a fake medical condition to suit their theory. But even if the Court were to pretend that micro-tears are real, Plaintiffs still lose. As a matter of law, this isn’t the sort of ‘unreasonable safety hazard’ whose failure to disclose on a product label is actionable.”
The firm is similarly contemptuous of plaintiffs’ allegation that the “Dermatologist Tested” claim on St. Ives Apricot Scrub is deceptive, contending that the plaintiffs conflate “tested” and “recommended” as a matter of convenience. The product is, in fact, tested by dermatologists, according to Unilever.
“You don’t get to rewrite the words and then sue over imaginary label statements,” it says.
The suit survived Unilever’s dismissal motion in April 2017. (Also see "Unilever Files Snarky Motion To Shred St. Ives Class Action" - HBW Insight, 14 Mar, 2017.) The court determined at that time that plaintiffs’ averments were sufficient for pleading purposes.
However, their luck could be running out.
In its dismissal order, the court noted that “whether or not Plaintiffs’ allegation – that crushed walnut shells render a product unfit as a facial scrub – is based on ‘junk science’ is relevant at a later stage of litigation, such as in a motion for summary judgment.”
St. Ives Acne Control Apricot Scrub with salicylic acid helps reduce and prevent breakouts, while its crushed walnut shell powder “leaves pores fresher than fresh for beautifully glowing skin,” according to the brand.
The product (6 oz.) sells online for under $4.