Multiple attacks on putative sunscreen purchaser class

Beach party

Plaintiffs’ lawyers in a class action against Neutrogena were fighting hard in the Central District of California in October 2017. The plaintiffs were trying to win class certification for a group of consumers who allegedly purchased Neutrogena sunscreen based on labels claiming the products contained “naturally sourced sunscreen ingredients.”

In support of their argument, the plaintiffs submitted a survey that polled consumers about the nature of the sunscreen ingredients. The survey purported to demonstrate that most of the consumers, when presented with the labels claiming natural sources, concluded that the products were made entirely of natural ingredients.

Neutrogena’s counsel wasn’t impressed, protesting that the survey was irrelevant because it didn’t show respondents either actual labels or products. “That survey,” stated the Neutrogena team, “violates every rule in the book.”

Somewhat natural?

The certification battle grew out of an original lawsuit filed in 2013. After several twists and turns, including a failed motion to dismiss, the defendants submitted a renewed motion for class certification in the summer.

The plaintiffs, led by named consumer Julie Fagen, had allegedly purchased a range of Neutrogena sunscreen products. The common thread binding the putative class together was the argument that the “naturally sourced” label claim is false and misleading. Neutrogena argued against the certification, claiming that the specific product ingredients that blocked the sun were naturally sourced and that other ingredients did not need to be natural for the labels to be true. The defendants also took a shot at the consumers’ damages model, arguing that it did not support classwide damages.

The takeaway

Surveys and damage models aside, the future of this putative class may come down to a more mundane subject: semantics. A third objection raised against the class rested on the defense’s claim that the plaintiffs, in their own testimony, claimed they wanted naturally sourced products because they thought they were safer than other products. Neutrogena’s counsel was quick to note that “natural and safe don’t mean the same thing”; given that difference, the issuance of reliance is inherently individualized, the defense contends.

The court is currently reviewing the arguments. This case illustrates the importance of class certification battles in defending false advertising consumer claims.