Product Liability & Mass Torts Digest

The Central District of California recently shut down, on preemption grounds, a group of class-action plaintiffs’ second attempt to assert claims alleging that benzoyl peroxide (BPO) in over-the-counter (OTC) acne treatments unavoidably degrades into the carcinogen benzene.

On November 5, 2024, Danone Waters of America, LLC (Danone) achieved a notable legal victory, securing the dismissal of a putative class action alleging violations of Illinois and California consumer fraud statutes. The plaintiffs contended that Danone’s labeling of Evian bottled spring water as “natural” was deceptive due to the alleged presence of microplastics. The United States District Court for the Northern District of Illinois granted Danone’s motion to dismiss, finding the claims preempted by federal law.

The Food, Drug, and Cosmetic Act (FDCA or the Act) governs safety, efficacy, and labeling over drugs, cosmetics, dietary supplements, medical devices, and other consumer products. The FDCA grants the Food and Drug Administration (FDA) the primary power to enforce the Act, including whether drugs, cosmetics, dietary supplements, and medical device manufacturers properly label their products to avoid misleading their customers.