Overview: Neutrogena was sued for labeling their sunscreen products, ‘sunblock,’ ‘waterproof,’ and ‘sweatproof’, when in fact those claims are not true. In fact the FDA prohibited using those labels in 2011, with a regulation effective date of Dec 17 2012. Neutrogena was sued for using those labels before Dec 17, 2012, and predictably the plaintiffs lost, with the Court ruling the federal government exclusively regulates sunscreen product labeling.
All of us who wish to avoid skin cancer use some form of sunscreen, usually a lotion, sometimes an oil or a spray. Some of us want to get a tan so we use lower SPF products, trying to find that line between looking good and keeping alive — not getting cancer.
Neutrogena’s “Sunblock” Lotion
Neutrogena, owned by Johnson & Johnson (what isn’t) puts out all sorts of products in the competitive sunscreen market. Like other companies, Neutrogena advertised some of their products with the descriptions “sunblock,” “waterproof,” and “sweat proof.” They also put out a product labeled SPF 50+, meaning a greater sun protection factor than 50.
Zinc Oxide and Baby Oil
As a kid we always used zinc oxide on our noses and baby oil everywhere else. Both guaranteed a burn. I still have a tube of Coppertone SPF 2. It delays a burn for two minutes. Hard to come by these days. Some products have test values as high as SPF 87. Presumably they give as much sun protection as being in a concrete vault in a basement. Not many beaches and ski hills in vaults, so SPF 87 hasn’t done well in the market.
By the way, what’s the deal with expensive SPF-labeled shirts? Don’t cheap tee shirts work just as well?
Kay Eckler and Steve Engel sued Neutrogena claiming the company misleadingly labeled its products with the descriptions “sunblock,” “waterproof” and “sweat proof” in violation of the Federal Food and Drug Administration (FDA) regulations.
They contended Neutrogena’s Oil Free Healthy Defense Sunblock (there’s some consumer-tested marketing) lotion did not truly block the sun’s harmful rays but rather absorbed the sun’s rays, and was not truly “waterproof” and provided little “sweat proof” protection. I suspect all three claims are true.
The FDA must have agreed, because in 2011, with a compliance date of December 17, 2012, the FDA prohibited “waterproof,” “sweat proof” and “sunblock” labeling. Eckler and Engel sued Neutrogena claiming they should have stopped using those “misleading” terms even before the December 17, 2012 effective date of the FDA regulation. Their timing is off – seems tenuous.
Eckler sued Neutrogena under California’s Unfair Competition Law and Consumer Legal Remedies Act alleging its sunscreen product labeling of SPF 50+ was false and misleading. She claimed there was no evidence of any additional benefits of SPF 50+, yet consumers would naturally believe there are additional benefits and would buy the product over other products. Of course, she purchased two Neutrogena products in order to sue and did.
I figure anything over 30 SPF is a waste of money, but the girls in my family buy SPF 50 Broad Spectrum.
The FDA had considered allowing labeling of SPF 50+ but in the end declined to do so. The agency now requires labeling of Broad-Spectrum SPF which you should always buy. Or stay out of the sun or dress for the sun.
The case also discussed studies of product testing of SPF 80 and even SPF 87, but the FDA decided not to allow such labeling due to a lack of concrete evidence of the additional benefits from sun penetration.
The California Court of Appeal in Los Angeles ruled that federal law entirely preempts the labeling of sunscreen products. Congress exclusively regulates the labeling of sunscreen. How Eckler and Engel prefer sunscreen lotions to be labeled doesn’t matter.
Neutrogena (and all the other sunscreen manufacturers) win
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, mediation and other transactional matters. He may be reached at email@example.com or www.portersimon.com. Like us on Facebook. ©2015
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