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 In a non-precedential opinion, the Second Circuit reached a different conclusion, holding that the challenged labels could mislead a reasonable consumer into thinking the products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.