17.  Defendant’s skin structural representations appear prominently and  conspicuously on each Product package as shown in Exhibit A, attached hereto.    20.  Also evidencing Defendant’s intent to market the Products as drugs is  that Defendant sells other skin care products – including, for example, another less  expensive eye cream – that make only cosmetic claims.    21.  Further evidencing Defendant’s intent to market the Products as drugs  is that Defendant encourages consumers to use the whole line of Revitalift  Products, stating in the “Directions” or “How to Use” section of some Product  labels: “[f]or best results, use in conjunction with other Revitalift products”, and  listing out specific Products to use in the “Your Recommended Regimen” section  of some Product labels.    22.  An over-the-counter face cream or moisturizer can be a drug, a  cosmetic, or a combination of both.  21 U.S.C. § 359 (the categories of “drug” and  “cosmetic” are not mutually exclusive).   24.  A cosmetic is also a drug if it is “intended to affect the structure or any  function of the body of man”.  21 U.S.C. § 321(g)(1).   25.  California’s Sherman Law (California’s Health & Safety Code §§  109875, et seq.) parallels the FDCA in material part and adopts all nonprescription  drug regulations.    26.  Like the FDCA, the Sherman Law defines a drug as “Any article other  than food, that is used or intended to affect the structure or any function of the body  of human beings.”  Cal. Health & Safety Code § 109925(c).    35.  Plaintiff brings this action on behalf of herself and all other similarly  situated consumers pursuant to Rule 23(a), (b)(2), and (b)(3) of the Federal Rules of  Civil Procedure and seeks certification of the following Class:  All California consumers who within the applicable statute  of limitations period until the date notice is disseminated,  purchased the Products.  Excluded from this Class are Defendant and its officers,  directors and employees, and those who purchased the  Products for the purpose of resale.   36.  Numerosity.  The members of the Class are so numerous that joinder  of all members of the Class is impracticable.  Plaintiff is informed and believes that  the proposed Class contains thousands of purchasers of the Products who have been  damaged by Defendant’s conduct as alleged herein.  The precise number of Class  members is unknown to Plaintiff.   38.  Typicality.  Plaintiff’s claims are typical of the claims of the members  of the Class because, inter alia, all Class members were injured through the  uniform misconduct described above.  Plaintiff is also advancing the same claims  and legal theories on behalf of herself and all Class members.     39.  Adequacy of Representation.  Plaintiff will fairly and adequately  protect the interests of Class members.  Plaintiff has retained counsel experienced  in complex consumer class action litigation, and Plaintiff intends to prosecute this  action vigorously.  Plaintiff has no adverse or antagonistic interests to those of the  Class.   41.  Plaintiff seeks injunctive and equitable relief on behalf of the entire  Class, on grounds generally applicable to the entire Class, to enjoin and prevent  Defendant from engaging in the acts described and requiring Defendant to provide  full restitution to Plaintiff and the Class members.   42.  Unless a Class is certified, Defendant will retain monies received as a  result of its conduct that were taken from Plaintiff and Class members.     43.  Unless an injunction is issued, Defendant will continue to commit the  violations alleged, and the members of the Class and the general public will  continue to purchase products not lawfully being sold and not recognized as safe.  44.  Plaintiff repeats and re-alleges the allegations contained in the  paragraphs above, as if fully set forth herein.   45.  Plaintiff brings this claim individually and on behalf of the Class.   46.  The Unfair Competition Law, Business & Professions Code § 17200,  et seq. (“UCL”), prohibits any “unlawful” business act or practice.    48.  As alleged herein, Plaintiff has suffered injury in fact and lost money  or property as a result of Defendant’s conduct because she saw and read the skin  structural representations, purchased the Anti-Wrinkle + Firming Eye Treatment,  Anti-Wrinkle + Firming Night Cream Moisturizer, Triple Power Eye Treatment,  and Double Lifting Eye Treatment Products based on the skin structural  representations, and she would not have done so but for Defendant’s skin structural  representations which she now knows were unlawful.  In addition, but for  Defendant’s illegal conduct, the Products, including those that Plaintiff purchased,  would not have been on the market as anti-wrinkle, lifting, firming/tightening, and  repair products.     49.  The NDA process is intended to ensure that if the consuming public  (e.g., Plaintiff) are sold a product that is a drug as defined under the FDA law and  regulations that is not generally recognized as safe and effective under an approved  monograph, it will have been put through the rigorous NDA process to ensure that  it is safe and effective.    50.  The UCL unlawful prong is intended to hold defendants who engage in  unlawful conduct accountable for their violations by, among other things, paying  full compensation to consumers who have purchased such illegally sold products  that, by virtue of being banned from sale to the public, are valueless or, at a  minimum, overpriced.     51.  Plaintiff and the Class members are entitled to the monies Defendant  wrongfully obtained in the amount of the full purchase price or, at a minimum, the  premium they paid for the Products.    53.  Plaintiff also seeks, on behalf of herself, all similarly situated  consumers and the public at large, declaratory relief and an injunction to enjoin and  prevent Defendant from engaging in the acts described, and all other relief this  Court deems appropriate, consistent with Business & Professions Code § 17203.  //  Violation of Business & Professions Code § 17200, et seq.  Unlawful Business Acts and Practices  