reasonable consumers aren't required to know collagen can't be vegan

Kandel v. Dr. DennisGross Skincare, LLC, 2024 WL 965621, No. 23-cv-01967 (ER) (S.D.N.Y. Mar. 5,2024)

SimilarCalifornia litigation at a later stage. Kandel alleged that Gross Skincare deceptivelylabeled and advertised its skincare products as containing collagen when, infact, they do not.

“Collagen is aprotein found exclusively in humans and animals that has been linked toyouthful skin, hair, and nails. It is composed of thousands of amino acidsintertwined in a specific, unique sequence. Without being sequenced this way,amino acids do not confer the same benefits as collagen.” The products at issueare uniformly branded with the phrase “C + Collagen.” The list of ingredientsincludes “Collagen Amino Acids”; some products also feature the term “collagenamino acids” in a separate section on the package titled “What It Is”/“What’sIn It For You.”

one of the packages at issue: C + Collagen Deep Cream

One side of each packagealso contains a small symbol indicating that the product is vegan—making “collagen”content impossible. Gross Skincare allegedly knows that consumers will pay morefor skincare products that contain collagen and intends for consumers to inferfrom the “Collagen” branding that the products do so.

blue lines/arrows added by court to highlight relevant terms

NY GBL claims weresufficiently alleged. Gross Skincare argued that the “C + Collagen” phrase didn’timply that the products contain collagen, but instead that the Vitamin C in theproducts increases natural production of collagen in the user’s skin. Itclaimed that the rest of the package clarified that the products contain“collagen amino acids” and are vegan. Because of the label “vegan,” it argued, areasonable consumer would understand that they do not contain collagen.

This interpretation of“C + Collagen” was “certainly less intuitive than Kandel’s.” Even considered asa whole, the complaint alleged misleadingness. The use of “collagen amino acids”“likely only reaffirms that collagen is an ingredient” and was itself arguablyconfusing; the label did nothing to explain it.

Even if one acceptsGross Skincare’s definition of “collagen amino acids” as “the building blocksof collagen,” the court did not assume that a reasonable consumer understandsthat collagen is a protein composed of amino acids. So too with “vegan.” Evenif the consumer noticed this small symbol, they’d have to know that collagencomes exclusively from animals.  Thiscertainly couldn’t be assumed on a motion to dismiss.

Breach of warrantyand unjust enrichment claims under New York law, however, failed, as well asclaims on behalf of a nationwide class.

Kandel did havestanding as to four products she didn’t buy but that contained the same allegedmisrepresentations.