ST. LOUIS (Legal Newsline) – No harm, no lawsuit, the maker of Banana Boat sunscreen is arguing in federal court against allegations its product contains dangerous levels of benzene.
But none of the plaintiffs in the proposed class action can actually allege they were exposed to the chemical, Edgewell Personal Care noted in an Aug. 30 motion to dismiss the St. Louis lawsuit of Lisa Zayas, Catalina Ocampo and Deborah Jean.
Since none of those three women have suffered an injury, they lack standing to pursue their case, Edgewell’s lawyers wrote.
“Plaintiffs claim Defendants failed to disclose trace amounts of benzene in the products,” the motion says. “Plaintiffs base their claims solely on testing purportedly performed by a third-party pharmacy, Valisure, and the citizen petition Valisure filed with the Food and Drug Administration.
“Plaintiffs… fail to allege that the products they purchased contained benzene. Plaintiffs merely allege that there is a ‘risk the products may contain benzene’ because a third party tested 19 bottles of Banana Boat sunscreen products and found five of them purportedly contained benzene at levels of 0.43 ppm, or less, which is well below the FDA’s 2 ppm benzene standard.”
Lawyers at Peiffer, Wolf, Carr, Kane and Conway filed the lawsuit earlier this year against Edgewell, Playtex Products and Sun Pharmaceuticals.
In response to the Valisure testing, Plaintiffs allege that Banana Boat's line includes 12 different products that have benzene as an ingredient.
Edgewell makes six arguments for dismissal, including:
-Plaintiffs have no “concrete and particularized injury” because they can’t allege the products they purchased contained benzene;
-Plaintiffs fail to state a claim for relief because most consumers would not believe a product label consistent with FDA requirements is misleading;
-Plaintiffs failed to make specific allegations regarding which products they purchased; and
-Plaintiffs failed to state a loss, meaning they can’t sue under state consumer protection statutes.