On April 15, 2020, the U.S. District Court for the Southern District of California granted summary judgment in favor of Beiersdorf, Inc. in a putative class action challenging the sale of one of its lotions. The plaintiff cycled through various theories before landing an allegation that the product was unlawfully sold as a new drug rather than a cosmetic because, she alleged, claims to “firm and tighten” are drug claims under the Food Drug and Cosmetic Act (FDCA). In granting summary judgment for Beiersdorf, the Court held that the plaintiff’s claims are preempted, because the plaintiff was improperly attempting to privately enforce the FDCA. The Court further held that there was particular reason to think that the plaintiff’s claims were preempted because her lawyers filed a Citizen’s Petition with the U.S. Food and Drug Administration (FDA) seeking relief and “the FDA flatly refused to take action against Beiersdorf” on the lotion product, which the Court held “counsels against a court finding to the contrary.” The Court’s decision marked a decisive victory for our client.
The Sidley team included Alycia Degen and Nisha Chandran in Los Angeles, and Elizabeth Chiarello, Kara McCall, Tacy Flint, Rachel Hampton and Bridget Murphy in Chicago.