Dismissing the plaintiff’s breach of warranty claims with leave to amend, a federal court in California has determined that she may pursue her remaining putative class allegations in consumer fraud litigation filed against the companies that distribute, market and sell the Banana Boat® SPF 85-110 collection of sunscreen products. Corra v. Energizer Holdings, Inc., No. 12-1736 (U.S. Dist. Ct., E.D. Cal., order entered August 2, 2013). The plaintiff claims that the combination of SPF values higher than 50 on product labels, a premium price and representations that these products provide superior UVB protection misleads consumers because “SPF values over 50 provide no additional clinical benefit to consumers.”

The defendants sought to dismiss the claims as preempted under federal law. The court disagreed, finding that the plaintiff does not claim that the SPF 85-110 ratings alone are per se false or misleading; rather, that the defendants marketed the products beyond simply providing an SPF rating thus misleading “consumers into purchasing more expensive, higher SPF-rated products even though, according to Plaintiff, these products did not provide proportionally greater protection than less expensive, lower SPF-rated products. If Plaintiff were to prevail under [California’s consumer fraud laws], Defendants’ SPF labeling duties would remain unchanged.” The court also found that primary jurisdiction did not bar it from deciding the claims, which raise the types of factual questions “routinely committed to the courts.”

The court rejected the defendants’ challenge to the plaintiff’s standing as to products she did not purchase, agreeing with a Northern District of California case holding that a plaintiff may bring claims on behalf of putative class members where the product she purchased is sufficiently similar to the products not purchased. Here, the plaintiff alleged that they contained virtually identical active ingredients and were marketed in “virtually the same manner.”

As to the defendants’ argument that the plaintiff failed to provide the required pre-suit notice under the Consumers Legal Remedies Act, the court found that because the operative complaint—the first amended complaint—was filed more than 30 days after the original complaint, accompanied by copies of the notice letter dated the same day, was filed, sufficient notice had been provided and she was entitled to pursue damages.