How do consumers interpret "reef friendly" claims when they appear on sunscreen packaging? This issue has been coming up a fair amount lately due to the fact that sunscreen makers want to let consumers know that they have eliminated certain chemicals from their products that are harmful to coral reefs and marine life. Is "reef friendly" puffery? Is "reef friendly" a claim about whether the product doesn't contain specific regulated chemicals? Or is "reef friendly" ambiguous enough that consumers will know that they need to read the back of the packaging to learn what it really does mean?
On this cold, cold weekend in New York -- it "feels like -6" where I am right now -- it sure would be nice to be sitting on a beautiful beach, enjoying the warm sun, with some "reef friendly" sunscreen (and potentially a tropical drink) beside me. But I digress. So, how do consumers interpret "reef friendly" claims?
Kroger's Fruit of the Earth Suncreen
Last year, we reported on a lawsuit against Kroger which alleged that the supermarket chain falsely claimed that its "Fruit of the Earth" sunscreen is "reef friendly" because it contains chemicals that are not, in fact, safe for reefs. In that case, a federal court in California denied Kroger's motion to dismiss, holding that the company had failed to establish that the "reef friendly" claim was 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."
Hain Celestial's Alba Botanica Sunscreen
Then, last month, we blogged about a lawsuit against Hain Celestial which similarly alleged that the "reef friendly" claim that appears on packaging for the company's Alba Botanica sunscreen is misleading because the product contains a variety of chemicals that are known to harm coral reefs and marine life. Hain Celestial moved to dismiss, aruging that the "reef friendly" claim, when viewed in context, will be understood by consumers only to communicate that the product doesn't contain the chemicals that are not allowed to be included in sunscreen under Hawaiian law. The company argued that this is the only reasonable take-away, in light of the fact that the product is marketed as "hawaiian suncreen" and that the packaging doesn't state that it's free of other chemicals that may be harmful to reefs. The company also argued that the back of the packaging lists the specific chemicals that are included in the product. A different federal court in California denied the motion to dismiss there as well, holding that how consumers will interpret the "reef friendly" claim couldn't be determined at this stage of the litigation. The court explained that, accepting as true the allegations in the complaint, "it is plausible that statements on the Products' packaging could deceive a reasonable consumer."
Edgewell's Hawaiian Tropic Sunscreen
Another "reef friendly" case was just decided by a federal court in New York. In that case, a consumer sued Edgewell Personal Care, alleging that the "reef friendly*" claim that appears on certain versions of the company's Hawaiian Tropic sunscreen was misleading because the product also includes chemicals that are harmful to coral reefs.
Here, the plaintiff sued for false advertising under New York law. In order to state a claim, the plaintiff must allege that the advertiser engaged in consumer-oriented conduct that is materially misleading, and that the plaintiff was injured. In order to be "misleading," the advertising must be "likely to mislead a reasonable consumer acting reasonably under the circumstances." In order to satisfy the reasonable consumer standard, "plaintiffs must do more than plausibly allege that a label might conceivably be misunderstood by some few consumers. Instead, Plaintiffs must plausibly allege that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled."
Edgewell moved to dismiss on various grounds, including on the grounds that the phrase "Reef Friendly*" is not materially misleading. In order to understand Edgewell's argument, it's critical to look at the specific claim that the company made, and the context in which it was used. Edgewell's "Reef Friendly*" claim includes an asterisk. Then, on the top of the back label of the product, there's a clarifying statement which reads "*No Oxybenzone or Octinoxate."
In determining whether a reasonable consumer would have been misled by a claim on a label, the "context is crucial." As the court explains, "under certain circumstances, the presence of a disclaimer or similar clarifying language may defeat a claim of deception." When will a disclaimer be effective? The court writes, "If a plaintiff alleges that an element of a product's label is misleading, but another portion of the label would dispel the confusion, thh court should ask whether the misleading element is ambiguous. If so, the clarification can defeat the claim."
Here, the court granted Edgwell's motion to dismiss, holding that the "Reef Friendly*" claim was not materially misleading.
In the court's view, the claim was not misleading, but was instead ambiguous, since it is susceptible to multiple interpretations. The court explained, "The representation 'Reef Friendly*" does not unambiguously convey that the sunscreen products do not convey any ingredients that could be harmful to coral reefs. Separately, the term is equally susceptible to the interpretation that [Edgewell's] susncreen products do not contain certain ingredients harmful to coral reefs commonly found in competing sunscreen products."
The court also felt that the asterisk next to the claim was "plainly visible on the front of the label and would lead a reasonable consumer 'to another statement' carrying a corresponding asterisk elsewhere on the label." The court explains, "The asterisk appended to the representation, however, asks consumers to read the rest of the label for further clarification."
What are the important take-aways from this case? Well, for one, it's certainly not the last we've heard about "reef friendly" claims. Second, while an asterisk may not solve all of your problems -- particularly in advertising -- when you've got an arguably ambiguous claim on your packaging, a court may be open to the argument that consumers have an obligation to look a bit further into what the claim actually means. As the court says here, "It is unreasonable . . . to suggest that a consumer is not required to read a product's label to obtain information."
"The representation 'Reef Friendly*' does not unambiguously convey that the sunscreen products do not convey any ingredients that could be harmful to coral reefs"