Kyla Asbury Dec. 2, 2014, 2:59pm

SAN DIEGO (Legal Newsline) - A California federal judge has dismissed a class action lawsuit against Merck & Co. Inc. that claimed it overcharged for Coppertone sunscreen products with sun protection factors above 55.

The plaintiff argued that SPF values placed on Merck's sunscreen products and their premium pricing mislead consumers into believing they are purchasing proportionally superior sun protection when they are not, according to the order filed Nov. 25 in the U.S. District Court for the Southern District of California.

"The problem with plaintiff's argument, however, is that it expands the claim she has actually alleged," U.S. District Judge Dana Sabraw's order states.

The essence of Danika Gisvold's claim is that Merck's SPF 55, 70+, 80 or 100+ representations on its Coppertone 55-100+ collection are false, misleading and reasonably likely to deceive the public.

"There are no allegations that plaintiff was exposed to anything other than Merck's sunscreen label on its products at retail outlets, that Merck made any affirmative claims of proportionally greater UVB protection for SPF 50+ sunscreen products or that Merck used misleading labels, such as 'sunblock' or 'waterproof,'" the order states.

The plaintiff argues she is not seeking "to disrupt existing federal regulations, but rather to provide greater consumer protections that are consistent with FDA regulations." However, in seeking to provide greater consumer protections, the plaintiff targets Merck’s sunscreen label and proposes a disclaimer regarding the level of sunscreen effectiveness beyond SPF 50.

"Because the proposed disclaimer plainly adds to and is not identical with the FDA’s requirements, plaintiff’s action is expressly pre-empted..." the order states.

Gisvold's class action lawsuit was originally filed on June 4 in the U.S. District Court for the Southern District of California.

Gisvold claimed despite the scientific evidence that SPF values higher than 50 provide no additional clinical benefit, Merck continues to claim that the Coppertone SPF 55 - 100+ collection provides superior UVB protection and sells the products for a price premium over comparable lower value SPF products, including the Coppertone SPF 50 Products.

"As the distributor of the Coppertone SPF 55-100+ collection, Merck possesses specialized knowledge regarding the content and effects of the ingredients contained in its products, and is in a superior position to learn of the effects – and has learned of the effects – its products have on consumers," the complaint states.

Merck knew or should have known, but failed to disclose that the Coppertone SPF 55-100+ collection does not provide superior UVB protection compared to less expensive, lower value SPF products, including the Coppertone SPF 50 Products, according to the suit.

The defendants filed a motion to dismiss for failure to state a claim on Sept. 18.

"Plaintiff’s reliance on Corra [v. Energizer Holdings]  and Lombardo [v. Johnson & Johnson Consume Companies] is unpersuasive because those courts did not consider the effect of 21 C.F.R. § 10.25 and did not analyze primary jurisdiction in the context of the FDA’s pending decisionmaking process regarding the clinical benefit of SPF 50+ sunscreen products," the order states. "For the foregoing reasons, defendants’ motion to dismiss is granted. This action is dismissed without prejudice."

Gisvold was represented by James R. Patterson of Patterson Law Group in San Diego.

Merck was represented by David E. Stanley, Lisa M. Baird and Michael L. Mandell of Reed Smith LLP in Los Angeles.

U.S. District Court for the Southern District of California case number: 3:14-cv-01371

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