The Second Circuit recently revived a putative class action asserting false advertising and breach-of-warranty claims over “Reef Friendly*” sunscreen, providing another cautionary tale of how claims involving potentially ambiguous marketing language can survive a motion to dismiss even when clarifying language appears elsewhere on the product package.

In Richardson v. Edgewell, plaintiff challenged the labeling of sunscreen products with “Reef Friendly*” on the front and the clarification “*No Oxybenzone or Octinoxate” or “*Hawaii Compliant: No Oxybenzone or Octinoxate” on the back.  According to the complaint, this labeling was deceptive under the New York General Business Law because the products contained other reef-harming ingredients, and that the inclusion of those ingredients also breached an express warranty formed by the words “Reef Friendly*.”

The district court dismissed the case, finding that the words “Reef Friendly*,” standing alone, were too vague and ambiguous to sustain a claim, and when viewed together with the clarifying language on the back label, the representation was not misleading.  In a non-precedential opinion, the Second Circuit reached a different conclusion, holding that the challenged labels could mislead a reasonable consumer into thinking the products contained no reef-harming ingredients.  Moreover, the opinion explained, the ingredient list would not provide clarification in this case because a reasonable consumer could not be expected to know the “universe of chemicals” harmful to coral reefs such that they could determine whether a sunscreen product was in fact “Reef Friendly.”

This case is one of several challenging similar sunscreen claims.  The Second Circuit’s opinion is yet another example of how vague marketing slogans, even coupled with clarifying language elsewhere on the label, may be deemed deceptive and capable of surviving a motion to dismiss.  This developing case law may also shed light on when courts might deem ingredient lists (or other sources of information) too far beyond the ken of a reasonable consumer to cure an allegedly deceptive representation.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities. Representative victories include:

  • Delivered wins in multiple nationwide class actions on behalf of large financial companies related to fees, disclosures, and other banking practices, including the successful defense of numerous lenders accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recent recognition as a “Class Action Group Of The Year.”
  • Successfully defending several of the nation’s leading financial institutions in a wide variety of litigation and arbitration proceedings involving alleged violations of RICO, FCRA, TILA, TCPA, FCBA, ECOA, EFTA, FACTA, and state consumer protection and unfair and deceptive acts or practices statutes, as well as claims involving breach of contract, fraud, unjust enrichment, and other torts.
  • Successfully defended several of the nation’s leading companies and brands from claims that they deceptively marketed their products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Obtained favorable outcomes for numerous clients in commercial disputes raising contract, fraud, and other business tort claims.

Because many of Andrew’s clients are subject to extensive federal regulation and oversight, Andrew has significant experience successfully invoking federal preemption to defeat litigation.

Andrew also advises clients on their arbitration agreements. He has successfully helped numerous clients avoid multi-district class-action litigation by successfully enforcing the institutions’ arbitration agreements.

Clients praise Andrew for his personal attention to their matters, his responsiveness, and his creative strategies. Based on his “big wins in his class action practice,” Law360 named Mr. Soukup a “Class Action Rising Star.

Prior to practicing law, Andrew worked as a journalist.

Photo of Kanu Song Kanu Song

Kanu Song is a litigator specializing in complex commercial disputes, including intellectual property litigation, class actions, and claims brought under consumer protection and competition laws, such as California’s Unfair Competition Law (B. & P.C. § 17200).

She works with clients in the technology…

Kanu Song is a litigator specializing in complex commercial disputes, including intellectual property litigation, class actions, and claims brought under consumer protection and competition laws, such as California’s Unfair Competition Law (B. & P.C. § 17200).

She works with clients in the technology, entertainment, consumer brands, food, drug, and cosmetic industries through all stages of litigation, with a strong track record of success on early resolution and dispositive motions.