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
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
"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
"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
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