GSK Consumer Health Holdings markets a ChapStick lip balm that it calls "2 in 1 lipcare."  This claim is a reference to the fact that the product has both moisturizing and sun protection properties.  On the ChapStick packaging, there's a big circle that says, in the top half, "8 hour moisture," and that says, in the bottom half, "SPF 15."  A plaintiff sued, claiming that the packaging is misleading because it suggests that ChapStick provides sun protection for 8 hours, when, in fact, the product needs to be applied more frequently than that to provide continuous sun protection for that length of time.  On the back of the packaging, the directions explain that, for sun protection, users must "reapply at least every 2 hours." 

A recent decision from the Eastern District of New York, which dismissed the lawsuit, provides some very helpful guidance on how to evaluate claims on product packaging.  

The plaintiff sued under Sections 349 and 350 of New York's General Business Law.  Section 349 prohibits "deceptive acts and practices" and Section 350 prohibits "false advertising in the conduct of any business, trade or commerce."  In order to state a claim under either section, a plaintiff must demonstrate that the challenged conduct was "materially deceptive or misleading to a reasonable consumer acting reasonably under the circumstances." 

Citing the Second Circuit, the court emphasized that, in order to evaluate advertising claims on packaging, "context is critical."  The court explained that, "Where the front of a package makes a bold and blatant misstatement about a key element of a product, there is little chance that clarification or context on the reverse of the package will suffice to overcome a deception claim."  The court said, on the other hand, "when the front of the package is better characterized as ambiguous than misleading," courts are more likely to consider the full context, including the statements on the back of the package, in order to determine whether a reasonable consumer will be misled.

The plaintiff here didn't contest the truth of the claims that the product provides "8 hour moisture" or that it provides "SPF 15" sun protection.  Rather, the plaintiff argued that, "the proximity of these claims to one another would lead the reasonable consumer to conflate them, and as a consequence to misunderstand that the product provides eight hours of sun protection." 

After examining the design of the packaging, the court was unpersuaded by the plaintiff's arguments.  The court pointed to the fact that the packaging emphases the moisturizing properties of the product,  that the "8 hour" claim is connected directly to the moisturizing claim, and that the sun protection claim is separately visually from the moisturizing claim.  The court wrote, "Simply put, the claim that the '8 Hour Moisture' label is likely to mislead consumers about sun protection is inconsistent with the face of the package, and with common sense."  

The court said that, at most, the reference to sun protection creates a "potential ambiguity" which can be cleared up by reviewing the directions on the back of the packaging.  The court wrote, "Those specific statements put any ambiguity to rest, directing the consumer to 'apply [the product] liberally 15 minutes before sun exposure,' and to 'reapply at least every 2 hours.'"  (The court distinguished this case from the Cheez-It case I blogged about a few years ago, where the court held that because the claim "made with whole grain" wasn't ambiguous, there was no reason for consumers to look to the back of the packaging for more information.) 

In addition, the court said that the type of product being marketed was relevant as well.  Given that the product is FDA regulated, "it is not to much to expect a reasonable consumer to review the directions on an SPF product for information on how often to apply it -- particularly where, as here, a similar set of directions is present on all sunscreen products pursuant to FDA regulations."  

In what should also be welcome news to marketers, the court acknowledged the difficulty of making product claims, and including disclosures, when there is very little space to do so.  The court said that GSK's "ability to separate the moisture and SPF claims is limited by the amount of packaging real estate available.  This limit makes the presence of a clear disclaimer on the reverse all the more salient." 

Finally, the court rejected the plaintiff's survey evidence -- which purported to show that a significant percentage of consumers were misled -- because the plaintiff only showed survey respondents the front of the packaging. 

Engram v. GSK Consumer Healthcare Holdings (US) Inc., 2021 WL 4502439 (E.D.N.Y. 2021).