Case over allegedly false SPF rating on Banana Boat sunscreens will continue

By Charmaine Little | May 22, 2018

LOS ANGELES (Legal Newsline) – A court has denied a motion to dismiss a suit against the producers of a brand of sunscreen over allegations they falsely stated the sun protection factor (SPF) on two types of sunscreen.

Judge Andre Birotte Jr. signed the order April 17.

Kelly Keskinen filed a complaint against Edgewell Personal Care Co., et al. with claims that the SPF 100 rating on their sunscreen products is false. The products in question are Banana Boat Kids MAX Protect & Play Lotion Sunscreen and Banana Boat Kids MAX Protect & Play Continuous Clear Spray Sunscreen.

The plaintiff requested to lead a class action of other consumers who bought the products in California and filed a first amended complaint. The defendants responded with a motion to dismiss, which the district court denied.

Keskinen said she bought the products for her grandchildren several times over four years. While the labels advertise the products have an SPF of 100, an independent lab test allegedly showed the SPF is actually 24, as Legal Newsline previously reported.

The district court states since the defendants were required to execute SPF tests, they were knowledgeable about the true SPF rating, and allegedly intentionally increased it for the advertised labels.

The plaintiff said she would not have paid the money she did for the products, if she bought them at all, had she known about the alleged true SPF rating. She alleged the defendants violated the Unfair Competition Law (UCL), the Consumer Legal Remedies Act (CLRA), and the False Advertising Law (FAL). She alleged the companies acted in “negligent misrepresentation, unjust enrichment, breach of express warranty, and breach of implied warranty of merchantability.”

The defendants used three notions in their request for dismissal: primary jurisdiction, the UCL, CLRA, and FAL claims do not align with particularity requirements of Rule 9(b), and that the economic loss rule blocks the negligent misrepresentation claim.

When it comes to primary jurisdiction, the defendants stated the Food and Drug Administration (FDA) should be the organization to handle the case, not the district court. While the defendants stated the FDA is better knowledgeable when it comes to SPF testing procedures, the court pointed out it’s the manufacturer’s responsibility to perform the SPF tests, rather than the FDA. The court also stated the case is not too complicated for the court to make a decision. It ended this argument with the idea the purpose of the case is not to determine if the SPF 100 ratings on the labels are false, but to decide if the rating is actually SPF 100. The court denied the motion for the primary jurisdiction argument.

For the particularity argument, the defendants stated the first amended complaint “fails to state plaintiff’s fraud-based claims with particularity,” which the defendants claim violates Rule 9(b). The court pointed out the regulation does not order a defendant’s intent or knowledge on a matter to be argued with particularity. In fact, it says accusations are permitted to be made “generally.” The district court dismissed the portion of this motion as well.

It also dismissed the defendants’ economic loss rule argument that the defendants say should stop the plaintiff’s claim of negligent misrepresentation. The district court cited a 9th Circuit case to decide the economic loss rule doesn’t apply to the plaintiff’s negligent misrepresentation argument and dismissed this argument as well.

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