in Newswire Published on September 15, 2022

ColourPop Eyeshadow, Eyeliner Not Safe for Use Around the Eyes, Class Action Alleges [DISMISSED]

Last Updated on November 6, 2023

Wilson v. ColourPop Cosmetics, LLC

Filed: September 12, 2022 ◆§ 4:22-cv-05198

A class action alleges ColourPop Cosmetics eyeshadow palettes and eyeliners are “adulterated” and unlawful to sell since they contain certain color additives that are unsafe.

Defendant(s)

ColourPop Cosmetics, LLC

Law(s)

California Business and Professions Code California Unfair Competition Law California Consumers Legal Remedies Act Song-Beverly Consumer Warranty Act

State(s)

California

November 6, 2023 – ColourPop Cosmetics Color Additives Class Action Dismissed

The proposed class action outlined on this page was dismissed by a federal judge on September 7, 2023.

Do you think your eye makeup contains banned color additives? Let us know here.

In an order issued that day, United States District Judge Trina L. Thompson granted ColourPop Cosmetics’ May 2023 motion to dismiss the plaintiff’s second amended complaint, which was filed in April of this year. The dismissal comes months after the plaintiff’s first amended complaint was similarly thrown out by Judge Thompson, in mid-April.

According to the 15-page order, the judge ruled that as the U.S. Food and Drug Administration regulates the use of harmful ingredients at issue in the lawsuit, jurisdiction over the matter belongs to the federal agency, not the court. The judge said that absent any violations of the federal Food, Drug, and Cosmetic Act or a relevant state law, the plaintiff failed to sufficiently allege that the products are unsafe.

“A validation of [the plaintiff’s] claims—that the purchased makeup is unsafe for use in the eye area—falls squarely out of this Court’s jurisdiction, and more importantly, veers too far from [the plaintiff’s] assertions that the products are unfit for use in the eye area without the appropriate legal authority: none have been provided,” the judge wrote.

Judge Thompson also contended that the plaintiff failed to plausibly allege that the cosmetics caused her to suffer an injury, or that they were likely to in the future.

Court records indicate that the plaintiff filed a notice of appeal of the dismissal a month later, on October 4, 2023.

Do you think your eye makeup contains banned color additives? Let us know here.

A proposed class action alleges ColourPop Cosmetics eyeshadow palettes and eyeliners are “adulterated” and thus unlawful to sell since they contain certain color additives that are unsafe for use around the eye area.

Do you think your eye makeup contains banned color additives? Let us know here.

The 32-page complaint alleges the ColourPop products at issue, including the company’s shadow palettes, pigment palettes, and pressed powder palettes, are “inherently dangerous” given they contain color additives the Food and Drug Administration has made clear should not be used around the eyes.

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Per the suit, the presence of the harmful ingredients renders the ColourPop eyeshadow palettes and eyeliners unsafe, adulterated and misbranded under the Federal Food, Drug, and Cosmetic Act (FDCA). Accordingly, it is unlawful for ColourPop to advertise, promote, market, or sell the eye makeup, the filing says.

“Defendant markets ColourPop Eye Makeup for a purpose (cosmetic application around the eye area) for which it cannot be used for [sic] both legally and because such use is inherently dangerous,” the lawsuit reads. “The Products cannot be used for their principal intended purpose. The Products are thus worthless by virtue of the Defect.”

According to the lawsuit, ColourPop has deliberately and willfully deceived consumers into believing its eye makeup is safe for its intended use. The suit charges that ColourPop knew that the products were unsafe for use around the eyes but nevertheless marketed the items as safe “without warning consumers of the known dangers.”

There are more than 100 variations of ColourPop eyeshadow palettes, which range in price from roughly $10 to nearly $40, the filing states. Each product contains between four and 35 distinct colors or shades, the suit relays.

The use of color additives is “tightly regulate[d]” by both the FDA and California Health & Safety Code, the complaint says, and the FDA states online that if a product contains a color additive, it must be approved by the agency. Moreover, a color additive may be safe for use in one product, such as lipstick, while still considered unsafe for use in another, such as eyeshadow, the case adds.

According to the complaint, the FDA does not allow the following color additives to be included in products intended for use around the eye area:

FD&C Red No. 4;
D&C Red No. 6, 7, 17, 21, 22, 27, 28, 30, 31, 33, 34, 36;
D&C Violet No. 2;
Ext. D&C Violet No. 2;
FD&C Yellow No. 6;
D&C Yellow No. 7, 8, 10, 11;
Ext. D&C Yellow No. 7;
D&C Orange No. 4, 5, 10, 11;
D&C Green No. 6, 8;
FD&C Green No. 3;
D&C Brown No. 1; and
D&C Blue No. 4.

Do you think your eye makeup contains banned color additives? Let us know here.

Lastly, the lawsuit contends that any disclaimer language used by ColourPop falls short of adequately informing consumers of the risks of using its eye makeup around the eyes in that it “does not assist the consumer in understanding the danger,” and is likely to be missed or overlooked. Crucially, ColourPop’s disclaimer “does not actually instruct consumers to not use the product in the eye area,” and does nothing to suggest any danger exists, the suit says.

The case looks to cover all United States residents who bought ColourPop eye makeup containing any of the ingredients listed on this page during the maximum period allowed by law.

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