CAMDEN, N.J. (Legal Newsline) – Though marketed as having the highest Sun Protection Factor (SPF) as the law allows, Banana Boat Kids SPF 50's sun shielding properties fall well short of that maximum, a class action lawsuit alleges.

Dyan D'Aversa alleges she, and likely many others, were misled into buying a sunscreen product that only has an SPF rating of eight, citing independent lab tests. But the sun screen in question advertises an SPF rating of 50 in its name, she alleges.

The SPF rating indicates how long a product will allow an individual to endure sun exposure without getting sunburned. An SPF rating of 50 promises to protect an individual 50 times longer than going without the product, while a rating of eight ensures only eight times the protection.

The plaintiff's argument points to, among other findings, a Consumer Reports study that tested Banana Boat Kids SPF 50 and found that the sunscreen's SPF was actually an eight instead of a 50. The suit states the defendants were aware of this huge discrepancy in real and advertised SPF since the product's inception.

D'Aversa on June 26 filed a complaint on behalf of herself and everyone else who might have bought Banana Boat Kids SPF 50 as far back as June 27, 2010. The suit lists charges on behalf of a national class and a New Jersey sub class.

The lawsuit, filed in in the U.S. District Court of New Jersey, names Playtex Products, well as Edgewell Personal Care Co. and Sun Pharmaceuticals as defendants.

Though previous reports indicated that the plaintiffs had been charging the defendants with negligent misrepresentation, court documents show that they're focusing on varying degrees of fraud.

A fraud claim generally alleges that a party intentionally made a false statement or claim about a product, knowingly disregarding the truth in an effort to deceive the consumer, stated John Morrow, partner at Burr & Forman.

"A negligence claim alleges that a company made a false claim about a product negligently, which could be carelessly or by mistake, meaning that under the circumstances a reasonable company either would have known or should have known that the claim was not correct," Morrow told Legal Newsline.

The main difference between the two is that fraud "requires proof of an intent to deceive," he said. Negligence, meanwhile, results when a party makes an error as a result of failing to act with "a reasonable standard of care."

"Similar in nature, these two claims have different elements of proof, but both a fraud claim and a negligent misrepresentation claim can be brought in the same lawsuit against a company," Morrow said.

While it doesn't appear to be the case in the Banana Boats Kids complaint, plaintiffs sometimes sue for both fraud and negligence to ensure all bases are covered.

"Both claims would be litigated in court to determine which, if either, is proven. Typically, fraud is harder to prove than negligent misrepresentation, as fraud requires proof of intent to deceive," Morrow said.

The "defendants purposely claimed the highest SPF factor which may lawfully be claimed in order to induce the false belief in consumers that they were purchasing a product which provided a high level of SPF," the complaint stated.

The suit accused the defendants of breach of warranty and unjust enrichment nationally, on behalf of the national class. It also accused the defendants of consumer fraud; breach of express warranty; breach of implied contract/violation of covenant of good faith; and violation of truth in consumer contract, warranty and notice on behalf of the New Jersey sub-class group.

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U.S. District Court for the District of New Jersey Camden Division
4th & Cooper Streets Camden, NJ 08101

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