Kroger, the supermarket chain, sells a store brand of sunscreen that is labeled as "reef friendly." A consumer sued Kroger, as well as the manufacturer of the sunscreen, Fruit of the Earth, alleging that the "reef friendly" claim is false and misleading because the product sunscreen contains various chemical ingredients that are not, in fact, safe for reefs.
Kroger moved to dismiss the lawsuit on the grounds that the "reef friendly" claim is mere puffery. Puffery is generally considered to be a subjective, exaggerated, statement of opinion, that is not provable or disprovable, and which consumers would not rely on when making a purchasing decision. (We blog about puffery cases all the time -- such as whether statements such as "free range," "slightly sweet," "therapeutic-grade," and "gently removes makeup" are puffery.)
Not surprisingly, the court denied Kroger's motion to dismiss, holding that the company had failed to demonstrate, at least at this stage in the litigation, that the "reef friendly" statement is "too generalized, vague, subjective, and/or constitute exaggerated boasting, such that a consumer cannot reasonably rely on the claim."
The court distinguished other cases where "friendly" claims -- "user-friendly" waterproofing products and "pet friendly" bamboo flooring -- were held to be puffery. The court explained, "Where a reasonable inference exists that consumers may be looking for sunscreen products that are not damaging to reefs, however, 'reef friendly' may reasonably be understood as implying defendants' products meet those criteria."
What seemed to really drive the court's decision, however, was existing FTC guidance and California law on environmental marketing claims. The court pointed to the fact that the FTC's Green Guides called out "Eco-Friendly" as a potentially misleading claim, noting that the Green Guides advise that, "Unqualified general benefit claims . . . likely convey that the product . . . has specific and far-reaching environmental benefits and may convey that the item . . . has no negative environmental impact." The court also relied on the fact that, under California law, statements that a product is "ecologically friendly," "earth friendly," and "environmentally friendly" mean that the product "is not harmful to, or is beneficial to, the natural environment." The court concluded that FTC guidance and California law "undermine any argument that 'reef friendly' can be dismissed as mere puffery."
White v. The Kroger Co., 2022 WL 888657 (N.D. Cal. 2022).
"Where a reasonable inference exists that consumers may be looking for sunscreen products that are not damaging to reefs, however, 'reef friendly' may reasonably be understood as implying defendants' products meet those criteria"