BROOKLYN, N.Y. (Legal Newsline) – Class action lawyers are hoping a federal judge decides reasonable consumers could be misled by claims made on tubes of ChapStick as he weighs whether to dismiss their lawsuit.
Michael Reese of Reese LLP on May 22 wrote to New York federal judge Eric Komitee, a week after a hearing on GSK Consumer Healthcare’s motion to dismiss a lawsuit.
The suit says the proximity of two separate statements on the package – one that ChapStick has an SPF of 15 and the other that it moisturizes for eight hours – leads users to think they are getting eight hours of SPF 15 protection.
GSK’s motion to dismiss asked how they could possibly separate the statements more, given that the tubes are small.
“(C)onsumers should not be required to scour the entirety of the packaging in order to clarify any ambiguity on the front of the packaging,” Reese wrote.
“Nowhere on the packaging does Defendant explicitly explain that the Product’s SPF 15 sun protection lasts less than two hours. Instead, the fine print ‘Directions’ on the back of the package states only: ‘Reapply at least every 2 hours.’
“This text is found in tiny font, at the bottom of the back of the packaging, buried in the long text of ‘Drug Facts.’”
Komitee asked the plaintiffs lawyers how a decision in favor of class action plaintiffs suing the maker of Cheez-Its applies.
Reese said a survey of 402 consumers showed that 64% believed ChapStick provided eight hours of SPF 15 protection. Working with Reese LLP is Sheehan & Associates of New York.