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Sunscreen Plaintiffs Get Burned: Court Tosses Labeling Lawsuit

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By Casey C. Sullivan, Esq. on August 12, 2015 3:57 PM

It's a good time for sunscreen in California, though you wouldn't know it up here in San Francisco, where the June Gloom has given way to a relatively gray Fogust. But, sunless as we may be, sunscreen companies have reason to celebrate, having recently defeated a long running consumer protection lawsuit.

Two plaintiffs who alleged that Neutrogena's sunscreens were misleadingly labeled and marketed have had their suits tossed by a California appellate court, the National Law Review reports. Their state law claims were, ahem, eclipsed by FDA regulations.

Sun Absorber Doesn't Have the Same Ring

Kay Eckler and Steve Engel claimed that Neutrogena had engaged in a multitude of deceptive and misleading practices in labeling and marketing their sunscreens. They objected to the descriptions "sunblock," "waterproof," and "sweatproof," which they argued were deceptive. Sunscreen doesn't actually block the sun, the plaintiffs asserted -- rather, it absorbs harmful ultraviolet rays. And of course, anyone who has worn sunscreen in the water knows that "waterproof" is at best an aspirational description, not a literal one.

Eckler also took issue with Neutrogena's labeling of sunscreen as "SPF 50+." What does the plus in 50+ signify? Apparently, not much -- certainly not greater sun protection. That didn't stop Neutrogena from charging extra for it, however, which Eckler claimed was an unfair business practice. Indeed, dermatologists view high SPF labels as deceptive and the FDA said in 2011 that SPF's over 50 are misleading, which is why you don't see many SPF 100 sunscreens around these days.

Beaten to the Punch by the FDA

Eckler and Engel's suits might seem nit-picky, but there was a solid foundation to most of their claims. Indeed, scientists and the medical community have been leery of sunscreen marketing for years. That is, perhaps, why the FDA beat Eckler and Engel to the punch and banned the practices they were objecting to. In 2011, the FDA banned labeling most sunscreens as sunblocks, waterproof, or sweatproof. Those new rules were adopted in 2011 and came into effect in 2012, nine years after Engel had filed his suit.

Those labeling requirements, and the FDA sunscreen labeling regulations generally, meant that Eckler and Engel's suits couldn't succeed. The pair sued under a trio of California consumer protection laws -- California's False Advertising Law, Consumer Legal Remedies Act and Unfair Competition Law -- which were all preempted by federal regulations.

The court noted that the FDA had comprehensive, detailed labeling requirements, the kind meant to "occupy the field." Indeed, the Senate made this clear in its FDA Modernization Act, which explicitly stated that State and local governments are not permitted to impose additional requirements. That means that Eckler and Engel were out of luck, even if their objections were sound.

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