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Plausibly Misleading FACE Sunscreen

Posted by James Juo | Aug 10, 2023 | 0 Comments

A product label is misleading if “a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1017 (9th Cir. 2020) (analyzing claims brought under the UCL, FAL, and CLRA for false and misleading advertising); see also Mantikas v. Kellogg Co., 910 F.3d 633, 636 (2d Cir. 2018).

On a motion to dismiss, the District of Connecticut found that the plaintiff plausibly alleged that she was misled by the labeling of a bottle of Coppertone Sport Mineral sunscreen as “FACE 50” to believe that it was “specifically designed” or “specifically formulated” “for use on the face.” Akes v. Beiersdorf, Inc., 2023 WL 5000434, No. 3:22-cv-869 (JBA) (D. Conn. Aug. 4, 2023).

In addition to the “FACE” designation “prominently displayed front and center,” the label also included the words “Won't Run Into Eyes” and “Oil Free” which were allegedly “face-specific representations.”

But the sunscreen was allegedly identical to the sunscreen in the larger 5-ounce bottle, which costs half as much per ounce. The plaintiff alleged that the “price disparity reinforces the deception that Defendant's misleading “FACE” packaging conveys, i.e., that the 2.5-ounce bottle contained more expensive but specifically formulated facial sunscreen.” While the plaintiff had not seen both bottles at the time of purchase, her alleged reliance on the “FACE” label for her belief that the ingredients were tailored specifically for the face survived dismissal.

Her actual injury was that she had paid more for a facial sunscreen product, and did not receive the benefit of the bargain because she did not get a lotion specially formulated for facial use. “This articulation of economic injury suffices to meet the standing requirement.”

The Court also noted that “whether the sunscreen is specifically formulated for the face remains a factual dispute requiring discovery.”

The defendant argued that “[t]here is nothing deceptive about emphasizing different but equally true aspects of a product to different market segments, or pricing products differently when sold to different market segments or in different retail channels.”

The defendant cited Culver v. Unilever United States, Inc., No. CV 19-9263-GW-RAOX, 2021 WL 2943937, at *8 (C.D. Cal. June 14, 2021) (noting label was largely in English, the French words did not suggest France as a place of manufacturing, and thus concluding that “the pleadings do not delineate a basis, other than unfounded supposition, for a consumer to believe that the Products were made in France”), appeal dismissed, No. 21-55732, 2021 WL 6424469 (9th Cir. Dec. 29, 2021); Clark v. Westbrae Natural, Inc., No. 20-CV-03221-JSC, 2020 WL 7043879, at *1 (N.D. Cal. Dec. 1, 2020) (holding plaintiffs failed to adequately allege that reasonable consumers would believe that just the word “vanilla” on defendant's vanilla soymilk product meant that the product's vanilla flavor was derived exclusively from the vanilla bean plant); and Becerra v. Dr. Pepper/Seven Up, Inc., 945 F.3d 1225, 1229 (9th Cir. 2019) (affirming a Rule 12(b)(6) dismissal on the grounds that no reasonable consumer would believe a soda labelled “diet” meant the soda would help the customer lose weight).

While labeling products “vanilla” or “diet” was found insufficiently specific to convey the particular representations that the plaintiffs in those cases asserted, here the use of the word “FACE” on a lotion bottle is plausibly understood by consumers to differentiate between the intended applications of sunscreen—face or body. See also Goodwin v. Walgreens, Co., No. CV 23-147-DMG (PDX), 2023 WL 4037175, at *3-4 (C.D. Cal. June 14, 2023) (denying a motion to dismiss where plaintiff claimed that a cough medicine's label – which had the word “children” in the product's name, and the words “for children,” and “Ages 4 & older” – misled customers to think it was “specifically formulated” for children, when in reality, the product was identical to the defendant's product for adults).

The Court found that it was plausible that the label implied that it was specifically designed or formulated for the face, not just suitable for the face. Although the mere fact of different prices doesn't violate consumer protection laws, it could contribute to deceptiveness because the price disparity plausibly reinforced the deception that the “FACE”-labeled product “contained more expensive but specifically formulated facial sunscreen.”

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.

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