Health Law Daily Wrap Up, COSMETICS—D.N.J.: Consumers lacked standing where they failed to show that they relied upon manufacturer’s representations, (May 26, 2026)

By Jeffrey H. Brochin, J.D.

Although the court found that consumers who purchased baby skin care products satisfied the element of economic harm, they failed to show that they relied on any alleged misrepresentations other than the product labeling.

A federal District Court in New Jersey has granted the Motion to Dismiss filed by Kenvue Brands, Inc. (Manufacturer) in a putative class action consumer lawsuit brought by Consumers who purchased the Manufacturer’s baby skin care products. Although the products were labeled as being hypoallergenic, the Consumers claimed that the products in fact contained irritating allergens. After examining various economic injury theories necessary for standing, the court found that Article III standing was established; however, the element of traceability of such injury back to the Manufacturer was lacking due to a failure by the Consumers to establish that they relied on website and other advertising representations (Beyer v. Kenvue Brands, Inc., No. 2:25-cv-12180-SDW-AME (D.N.J. May 19, 2026)).

Aveeno skin care products. The Consumers filed suit against the Manufacturer alleging that they unlawfully misled consumers into purchasing certain Aveeno Kids and Aveeno Baby skin care products by misrepresenting the products as “hypoallergenic” and suitable for “sensitive skin.” According to the Consumers, the Manufacturer launched a marketing scheme for its Aveeno Kids and Aveeno Baby skin care products “looking to appeal to consumers who were willing to pay a premium for products that were truly hypoallergenic, gentle, and suitable for irritable and sensitive skin.” Nearly all of the Aveeno Kids and Baby brand skin care products were labeled and marketed as “hypoallergenic,” and included additional labeling indicating to consumers that the products were suitable for sensitive skin by using phrases such as “sensitive skin,” “gentle,” “tear-free,” and “suitable for all skin tones.”

Notwithstanding such marketing, the Consumers alleged that the products in fact contained allergens in an amount that could be reasonably expected to induce an allergic reaction or skin irritation in a significant number of people. They filed suit under California, New Jersey, and New York consumer laws as well as under various Common Law tort theories. Presently before the court was the Manufacturer’s Motion to Dismiss for lack of standing.

Three avenues of economic harm. The court began its discussion by reiterating the elements necessary for Article III standing, that the Consumers needed to: (1) have suffered an injury in fact; (2) that was fairly traceable to the challenged conduct of the Manufacturer; and (3) that was likely to be redressed by a favorable judicial decision. The court then proceeded to identify the three avenues for pleading economic harm: first, under the alternative product theory, economic injury might be successfully pleaded by alleging that, absent a manufacturer’s conduct, a consumer would have purchased an alternative product that was less expensive; second, under the premium price theory, a consumer may plead economic injury by alleging that a manufacturer unlawfully advertised its product as being “superior” to others; and third, under the benefit of the bargain theory, a consumer might successfully plead an economic injury by alleging that she bargained for a product worth a given value but received a product worth less than that value.

Premium price theory. The Consumers contended that they pleaded an economic injury under the premium price theory, alleging that they were “willing to pay” a premium for products that were truly hypoallergenic and suitable for sensitive skin and that the Manufacturer falsely labeled and marketed its Aveeno Kids and Aveeno Baby skin care products as such. They further alleged that the Manufacturer’s misrepresentations induced them to pay more for the products than they would have had they known that the products were not hypoallergenic or suitable for sensitive skin.

The court noted that a premium price theory of injury is premised on the alleging that a manufacturer unlawfully advertised the contested product as being superior to others, which would allow the court to calculate the financial injury by determining the “premium” that a consumer was induced to pay by unlawful advertisements. To prevail on a premium price theory, the Consumers needed to show that it was the Manufacturer’s misrepresentations or omissions caused that them to overpay for the products. However, here, they failed to identify any comparable, cheaper products with which to demonstrate that a premium price was in fact paid. Accordingly, the element of economic injury failed under the premium price theory.

Benefit of the bargain theory. The Consumers further argued that they suffered economic injury under the benefit of the bargain theory. Under that theory, economic injury is calculated as the difference in value between what was bargained for and what was received. However, it is not enough for a consumer to allege that they purchased a product and then later wished they had not done so; rather, to proceed under that theory, the Consumers needed to allege facts demonstrating that they did not receive the benefit of their bargain because either: (1) they received a defective product; or (2) they would not have purchased the product at issue but for a specific misrepresentation made by the manufacturer, i.e., that they were induced into purchasing the product by a specific misrepresentation.

Here, the court found that the Consumers failed to plead factual allegations regarding the levels of allergens in the products that were likely to cause allergic reactions. Therefore, they failed to plausibly allege a key inference necessary for standing, and could not establish Article III standing pursuant to a benefit of the bargain theory of economic harm.

Unpurchased products issue. The Manufacturer also asserted that the Consumers lacked standing to pursue their claims regarding products they did not purchase. The Consumers responded that as to the unpurchased products, that issue of standing is properly addressed at the class certification stage, and that it would be premature to resolve that question at the pleadings stage. The court agreed with the Consumers, observing that the timing of a standing analysis may be different in the context of a class action. When addressing whether a consumer may assert claims in a putative class action regarding products the consumer did not personally purchase or use, courts often hold that “the standing issue becomes ripe only in the context of a motion for class certification.” Accordingly, the court found that whether the Consumers had standing to pursue claims regarding the unpurchased products was a question not yet ripe for resolution, but one that the court would consider this at the class certification stage, if necessary.

Element of traceability. The Consumers premised their claims on the Manufacturer’s overall marketing campaign in connection with the products and highlighted excerpts from the Manufacturer’s website and retailer websites. However, they did not allege that they relied on any of the Manufacturer’s misrepresentations other than the products’ labeling. Therefore, the court found that the Complaint did not contain sufficient facts to allege that the injuries which resulted were fairly traceable to any of the Manufacturer’s representations other than those on the products' labeling. Accordingly, the court concluded that the Consumers lacked Article III standing to pursue their claims based on advertisements not seen or relied upon by the Consumers.

The case is No. 2:25-cv-12180-SDW-AME.

Judges: Wigenton, S.

Attorneys: Martin P. Schrama (Stark & Stark PC) for Cheyenne Beyer. Michael Charles Zogby (Barnes & Thornburg LLP) for Kenvue Brands LLC.

Companies: Kenvue Brands LLC

Cases: CaseDecisions FDCActNews CosmeticNews LabelingNews SafetyNews GCNNews NewJerseyNews