A federal judge has burned off two of three counts in a class action complaint facing Dollar General over claims the retailer’s aloe vera cooling gel didn’t actually contain aloe vera.
Thera Lambert and Amy Connor, of Illinois, filed a three-count complaint against Dollar General regarding DG Body Soothing Aloe Gel, alleging it does not contain aloe vera despite the product name and labeling implying it included “aloe barbadensis leaf extract.” In an opinion issued June 16 in Chicago, Judge Harry D. Leinenweber granted Dollar General’s motion to dismiss two of the counts without prejudice.
The women said they bought the gel in 2015 and 2016 because the value aloe vera’s ability to promote skin healing and sunburn relief. But laboratory testing revealed the gel lacked certain compounds, including acemannan, glucose, malic acid and whole leaf markers, which American Herbal Pharmacopeia and the International Aloe Science Council state are aloe vera hallmarks, according to the judge’s decision.
Saying Tennessee-based Dollar General employed misleading cosmetic labeling under the Food and Drug Cosmetic Act, the women formally alleged breach of express warranty, breach of the implied warranty of merchantability and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. The class would include anyone in Illinois who bought the gel in the four years before they filed the complaint.
In moving for dismissal, Dollar General’s main argument was it did not market its gel as certified by either AHP or the IASC, thus undercutting the plaintiffs’ use of those organization’s statements about the gel to establish the express warranty they allege Dollar General violated. Leinenweber rejected that approach, however, saying the organization’s studies are allowable components of the allegations and at this stage of the litigation “it suffices to note that the link between the study’s conclusions and the Gel’s affirmative statements of fact is plausible.”
However, Leinenweber sided with Dollar General with respect to the breach of implied warranty of merchantability claim, noting plaintiffs bringing such allegations must say the goods were not merchantable at the time of sale, that they suffered damages as a result of defective goods and that they gave the defendant notice of the defect. Dollar General said the women failed to adequately plead the gel failed its primary purpose, a necessity to prove it was not fit to be sold as labeled.
That argument found favor with Leinenweber, who noted the plaintiffs did not allege the gel failed to provide “after-sun cooling relief” as advertised. Further, neither woman said they actually used the gel.
“Nothing in the amended complaint supports the inference that only aloe vera can moisturize or cool skin — such that the very allegation of its absence from the gel plausibly states a failure of ordinary purpose,” Leinenweber wrote. “There is no plausible claim that the Gel failed its ordinary and intended purpose.”
Dollar General attacked the state law claim by first asserting it is barred under ICFA’s safe harbor for compliance with federal law and then by saying the state claim merely duplicates the express warranty claim. Leinenweber rejected the first approach, saying the claim is not implausible under the safe harbor provision, but agreed with the second prong, explaining the state law is not intended to apply to basic contract breach claims.
“By crying consumer fraud based only on the same affirmative statements that backstop their breach-of-express- warranty claim, plaintiffs fail to bring an actionable ICFA claim,” Leinenweber wrote.
Dollar General asked for all counts to be dismissed with prejudice, but Leinenweber would not dismiss the first and dismissed the second and third without prejudice, writing, “the more prudent alternative is futility testing any amendments plaintiffs may propose against the legal framework and analysis set forth in this opinion.”
The plaintiffs were represented in the action by attorneys with the firms of Anderson & Wanca, of Rolling Meadows; Kohn, Swift & Graf, P.C., of Philadelphia; Barbat, Mansour & Suciu PLLC, of Bloomfield Hills, Mich.; JTB Law Group, of Chicago; Lite Depalma Greenberg, of Chicago; Greg Coleman Law, of Knoxville, Tenn.; and Sommers Schwartz, P.C., of Southfield, Mich.
Dollar General is defended by the firm of Winston & Strawn, of Chicago.