BROOKLYN, N.Y. (Legal Newsline) – The maker of ChapStick is again asking a federal judge to throw out a class action lawsuit that accuses it of claiming the product can protect against the sun for eight hours.
It is the second time GSK Consumer Healthcare Holdings has had to point out that the reason its claims for “8 hour moisture” and “SPF 15” are so close is because there is not a lot of room on its tubes. In August, the law firm Sheehan & Associates was permitted to file an amended complaint.
“Plaintiff’s Amended Complaint does not make his claims any more plausible. Instead, his only new substantive allegation is a one-sentence conclusory reference to a consumer survey in which a majority of participants purportedly responded that ChapStick Moisturizer provided eight hours of sun protection,” the new motion to dismiss says.
“Nowhere in the Amended Complaint does plaintiff explain what participants were shown in the survey or what question(s) they were asked.
“Plaintiff’s apparent strategy to survive a motion to dismiss – the less said the better – is directly contrary to the mandate of the U.S. Supreme Court, which has held that in order to satisfy Rule 8, a plaintiff must offer concrete and plausible factual allegations, not just ‘conclusory statements.’”
The packaging instructs users to reapply at least every two hours. Plaintiff Clifton Engram has alleged he was at a risk of harm because the packaging encourages under-application of the product. GSK also says Engram doesn’t allege he was actually harmed.
The amended complaint says a May survey by a third party of 402 consumers showed 64.4% of them thought the packaging claimed eight hours of sun protection.