Sunscreen manufacturers may now be facing significant liability as a result of a recent marketing trend in labeling sunscreen products as being “safe” or “friendly” for coral reefs. Last week, Judge Chhabria of the Northern District of California denied in full defendant’s motion to dismiss in Locklin v. StriVectin Operating Company, Inc., a class action challenging StriVectin’s “Reef Safe” sunscreen products as being falsely labeled because they contain chemical ingredients avobenzone, homosalate, octisalate, and octocrylene, which are harmful to coral reefs. Judge Chhabria held that plaintiff had adequately alleged that “Reef Safe” is a deceptive representation under California’s consumer protection laws. Plaintiff’s complaint “tells a simple story” noted the Court. “StriVectin promises that its sunscreen is ‘reef safe,’ when it in fact contains chemicals that actively harm coral reefs and the marine life that rely on them for survival.” The Court also found that defendant’s asterisk and back-label disclaimer were insufficient at the pleading stage to cure the deceptive front-label claim. Of note, the Court also rejected StriVectin’s gripes with the scientific studies and other evidence in the complaint demonstrating the harm the four ingredients pose to coral reefs, concluding that “whether the studies cited in the complaint definitively prove Locklin’s claims is not a dispute susceptible to resolution on a motion to dismiss.”
Subsequently, Judge Seeborg of the Northern District of California denied Kroger’s motion to dismiss in full in a separate case challenging Kroger brand’s “Reef Friendly” sunscreen products for containing the same harmful ingredients. Judge Seeborg held that Kroger had failed to show how the “Reef Friendly” representation was too vague and generalized so as to constitute non-actionable puffery, finding instead that statement may reasonably be understood as implying Kroger’s products meet those criteria. Of note, the Court also declined to dismiss or stay the action under the primary jurisdiction doctrine, concluding that any potentially forthcoming legislation was “too remote at this juncture.” Lastly, relying on the StriVectin decision, the Court held that the scientific evidence cited in the complaint was sufficient at the pleading stage to plausibly demonstrate the falsity of the “Reef Friendly” claim.
Faruqi & Faruqi, LLP is at the forefront of this litigation, serving as co-lead counsel for plaintiffs in both cases. Faruqi & Faruqi is also co-lead counsel in Moran v. Edgewell Personal Care, LLC, a similar class action in front of Judge Seeborg, challenging similar representations on Banana Boat sunscreen products. A similar motion to dismiss is pending in the Moran case.