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Beiersdorf Wants Nivea ‘Unapproved Drug’ Suit Off Its Back Once And For All; L’Oreal Likely Watching

Executive Summary

A proposed class action alleging that Nivea Skin Firming Hydration Body Lotion is an unlawfully marketed structure/function-changing drug was dismissed in 2017, only to be resuscitated by a Ninth Circuit reversal in December 2018. Beiersdorf is trying to get the suit tossed again, which would be of some assurance to L’Oreal, now facing similar litigation.

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Plaintiff Claims Against Beiersdorf For ‘Unlawfully Marketed Drug’ Are Preempted By FDCA, Court Rules

After five and a half years, three dismissal motions and one appeal, Beiersdorf’s prevailed on 15 April by summary judgment in a proposed class action alleging that its Nivea Skin Firming Hydration Body Lotion is an unlawfully marketed drug. Of course, the plaintiff still could appeal.

Beiersdorf’s Long Court Battle Over Nivea ‘Drug’ Claims May Be Ending; In Similar Case, L’Oreal May Settle

The Beiersdorf and L’Oreal cases, both pending in California federal courts, have important implications for the cosmetics industry and its use of benefit claims that test statutory boundaries between unapproved drug products and cosmetics.

Anti-Aging Cosmetics Or Unlawfully Marketed Drugs? Two Federal Court Cases To Watch

The Ninth Circuit will hear arguments from L’Oreal and a plaintiff who alleges the firm’s RevitaLift products are unlawfully marketed drugs, following the case’s dismissal in July on federal preemption grounds. In a neighboring California district, Beiersdorf intends to seek summary judgment in five-year-old litigation of a similar design, concerning Nivea Skin Firming Hydration Body Lotion.

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