BROOKLYN, N.Y. (Legal Newsline) – One target of an attorney who files novel class actions is hoping an October decision will help doom the case against it.
GSK Consumer Healthcare Holdings, the maker of ChapStick, says a survey conducted and cited by New York lawyer Spencer Sheehan fails to prove customers were misled by its packaging.
At issue in the case are adjacent claims on tubes. An advertised lasting time of eight hours is next to a claim of 15 SPF, but GSK argues this does not mean ChapStick claims to provide sun protection for eight hours.
GSK on Dec. 8 notified New York federal judge Eric Komitee of an October decision by a colleague in New York’s Southern District in one of the dozens of lawsuits Sheehan has filed against products that are vanilla-flavored.
Those lawsuits say there is not enough real vanilla to justify vanilla as a characterizing flavor.
“(S)tating that a protein drink is vanilla flavored when it is, even without clarifying the source of the vanilla, does not mislead because reasonable consumers would expect a vanilla taste, and that is exactly what they get,” Judge Valerie Caproni wrote on Oct. 27 in dismissing a lawsuit over a non-dairy, vanilla-flavored protein drink.
More pertinent to the ChapStick case, GSK says, is the use of the results of a survey conducted by Sheehan. Caproni rejected its findings.
“Plaintiffs contend that the consumer survey demonstrates that over 70% of the respondents believed the flavor in Defendant’s product came ‘only from vanilla beans,’” she wrote.
“The language used in the survey itself, however, shows that over 70% of the respondents believed the vanilla taste came from vanilla plants; 70% did not say that they believed the vanilla taste came only from vanilla plants.”
A footnote says Sheehan “improperly” conflated two responses to his survey, which asked respondents who were shown a picture of a bottle of the drink “What does the label… convey about the origin of the vanilla taste?”
There were five possible responses, two of which were that it “comes from vanilla beans from the vanilla plant” and that “it comes from both the vanilla plant and non-vanilla sources.
“Based on the latter potential response, Plaintiffs implicitly assert that the respondents who selected ‘It comes from vanilla beans from the vanilla plant’ actually meant to convey that they believe the vanilla flavor comes 100% from the vanilla plant,” Caproni wrote.
“That is not, however, the most plausible reading of the survey response. Plaintiffs constructed the survey. If they wanted to ascertain whether respondents thought the flavor came 100% from the vanilla plant, that would have been an easy enough response to draft.”
GSK says Sheehan used the same method of submitting a survey containing leaning and loaded questions “rather than direct questions that would determine whether plaintiff’s theory of deception has any merit.”
ChapStick’s 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.