BROOKLYN, N.Y. (Legal Newsline) – Sued over the proximity of statements made on its packaging, the maker of ChapStick is wondering where else it was supposed to fit them.
GSK Consumer Healthcare Holdings filed a motion to dismiss a proposed class action lawsuit that claims its tubes of ChapStick mislead consumers into thinking it provides eight hours of protection from the sun.
The lawsuit, filed by a law firm that has made headlines for attacking products with vanilla flavor, notes two claims – Eight hours of moisture and SPF 15.
They appear in the same bubble on tubes but in different colors.
“The sole plaintiff in this case, Clinton Engram, contends that including these two distinct pieces of information, unsurprisingly in close proximity to each other given the small size of lip balm packaging, can somehow mislead a reasonable consumer into believing ChapStick Moisturizer does the impossible: Protect users from the sun for eight hours,” the defendant’s lawyers wrote in February.
“Mr. Engram so alleges even though the eight hours mentioned on the package are clearly qualified by the word ‘MOISTURE,’ and even though the actual length of sun protection (two hours) is also clearly stated elsewhere on the package.”
The packaging also instructs users to reapply at least every two hours.
The plaintiff has alleged he was at a risk of harm because the packaging encourages under-application of the product. GSK’s motion to dismiss says the lawsuit must be tossed because Engram doesn’t allege he was actually harmed.
GSK also discounts the lawyers’ attempt to list unnamed plaintiffs as placeholders for future named plaintiffs from states other than Engram (New York).
Oral arguments over the motion will take place May 15 before Judge Eric R. Komitee, of the U.S. District Court for the Eastern District of New York.
From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.