Antitrust Law Daily Wrap Up, ADVERTISING—D. N.J.: Class relating to benzene-containing product may not proceed, (Feb 26, 2026)

By Sara Cracau, J.D.

Lack of future injury doomed motion for injunctive relief.

The federal district court in Trenton, New Jersey has granted the motion to dismiss of a health products’ manufacturer in a class action alleging false and misleading advertising concerning products containing benzene finding that even though some claims were not pre-empted, the complaint failed to state a claim. The court found that the consumers had standing to sue to pursue their monetary damages and restitution but not their injunctive or declaratory relief. The court granted the health products manufacturer’s motion to dismiss the injunctive relief claim because it was clear that the consumers had no intention of purchasing the products at issue in the future. The court found that, even though some of the claims were not preempted, the consumers failed adequately to allege with specificity parallelism of each state law asserted regarding the misbranding theory and, therefore, the claim could not proceed (Mitchell v. Kenvue, Inc., No. 3:24-cv-04109-GC-JBD (D.N.J. Feb. 24, 2026)).

Consumers residing in eleven states purchased health products including Clean and Clear and Neutrogena which is a benzoyl peroxide (BPO) acne treatment product which they alleged contained benzene, a known human carcinogen. The consumers alleged that BPO naturally degrades into benzene. However, the label did not disclose that benzene was one of the products’ ingredients. They alleged that they would not have purchased the products if they had known that the products contained this ingredient. A subsidiary of the health products’ manufacturer (Subsidiary) was responsible for consumer health products, including Clean and Clear and Neutrogena.

The FDCA regulates most over the counter (OTC) medications through a “monograph” process which provides a set of regulations that describe conditions under which certain drugs may be marketed without a prescription. There is a specific monograph for acne products. In addition, regulations set forth labeling requirements for OTC drugs. Chapter V of the FDCA prohibits the sale of “adulterated” or “misbranded” drugs. The consumers filed a putative class action complaint.

The court consolidated the case with two others and the consumers filed the operative consolidated class action complaint alleging claims for violations of the California Unfair Competition Law, the Consumers Legal Remedies Law, and false advertising and deceptive trade practices claims under various state statutes. The Subsidiary moved to dismiss for failure to state a claim.

Standing. The court found that the consumers had standing to sue to pursue their monetary damages and restitution but not their injunctive or declaratory relief. The court found that the consumers plausibly alleged that they purchased benzene-containing acne products which were worth less than acne products not containing benzene and that they plausibly alleged that they purchased defective products. The court found that the consumers plausibly alleged the presence, not level, of benzene and they did not need to allege that the Subsidiary’s BPO products contained higher levels of benzene than set forth in FDA regulations to meet the standing requirement. Because each consumer purchased a Neutrogena or Clean & Clear acne BPO product, each alleged standing to pursue monetary damages.

Injunctive relief claim. The court granted the Subsidiary’s motion to dismiss the consumers’ injunctive relief claim because it was clear that they had no intention of purchasing the products at issue in the future and, therefore, they failed to show that they were likely to suffer future harm.

Preemption. The court found that some of the claims were preempted. The FDCA and its accompanying regulations imposed requirements on the Subsidiary stemming from the following sources: (1) the Acne Monograph; (2) the format and content labeling requirements; (3) the prohibition against adulterating or misbranding drugs; and (4) the cGMPs. The court found that the Subsidiary was not required to list benzene in its labels because only inactive ingredients that were “intended” for use had to be listed and the consumers did not allege that the Subsidiary intended to use benzene in its products. The court had to determine whether benzene had to be included in the product label pursuant to Chapter V of the FDCA which prohibited misleading labeling. Current good manufacturing practices (cGMPs) impose certain “safety, quality, purity, identity, and strength standards” on OTC products. Because the consumers alleged that benzene was present in the Neutrogena and Clean & Clear products and caused adverse health consequences, the Subsidiary was required to disclose the presence of benzene on the product label even if the Acne Monograph did not require this, Therefore, this claim was not pre-empted.

Although this claim was not preempted, the consumers still had to allege that their claims were cognizable under parallel state law. However, the consumers’ conclusory allegation that state laws mirror the federal requirements was insufficient to adequately plead that the state causes of action were parallel to the federal ones. In addition to the parallelism deficiencies regarding the state statutory causes of action, the consumers did not allege or otherwise explain parallelism with respect to the common law theories of relief.

Failure to state a claim. The court found that, even though some of the claims were not pre-empted, the consumers failed adequately to allege with specificity parallelism of each state law asserted regarding the misbranding theory and, therefore, the claim could not proceed. Furthermore, the court found that the consumers’ cGMP claims failed because they did not adequately allege parallelism and the allegations were too conclusory to state a claim.

The Case is No. 3:24-cv-04109-GC-JBD.

Judge: Castner, G.

Attorneys: Philip Lawrence Fraietta (Bursor & Fisher P.A.) for Ethel Mitchell. Stephen C. Matthews (DLA Piper LLP) for Kenvue, Inc. and Johnson & Johnson Consumer Inc.

Companies: Kenvue, Inc.; Johnson & Johnson Consumer Inc.

Cases: Advertising NewJerseyNews