Christina Spicer  |  August 19, 2014

Category: Consumer News

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Neutrogena Naturals Class Action Lawsuit SettlementLast week, Neutrogena Corp. filed a motion to dismiss a class action lawsuit alleging that the skin care company misleads customers about the effectiveness of their sunscreen products because the plaintiff did not allege that he used all 20 products he claims are misleading.

Lead plaintiff Nathan Dapeer claimed in his class action lawsuit that the labeling on Neutrogena sunscreens indicating the products provide high-SPF and are water resistant are false and mislead consumers into purchasing a higher priced product. Dapeer alleged in his complaint that he purchased two products from Neutrogena’s Beach Defense line of sunscreen products containing high-SPF and water resistant claims and that all 20 products in that line are misleading and the sunscreen products allegedly do not deliver the SPF protection promised and are not water resistant.

Neutrogena struck back arguing that the class action should be dismissed because the plaintiff lacks standing and because the claims are pre-empted by the U.S. Food and Drug Administration (FDA). First, Neutrogena pointed out in its motion that the plaintiff had only purchased two of the 20 products he alleges as containing the misleading statements.

“Plaintiff … alleges that he purchased only two of the over twenty different products at issue, presumably at some point during the class period, although Plaintiff fails to allege when or where the purchase(s) occurred. Plaintiff alleges that he would not have purchased the two products but for the allegedly false advertising,” argues Neutrogena. “Nowhere in the Complaint, however, does Plaintiff allege that he ever purchased, considered purchasing, or plans to purchase any of the other Products referenced in the Complaint, the filing continues.

“Indeed, while Plaintiff claims that Neutrogena ‘extensively marketed’ its Products, Plaintiff never makes any claim that he was exposed to, or relied upon, any other form of advertisements or promotional materials pertaining to any of the Products, other than SPF values, and the ‘water resistant’ and ‘water + sun barrier’ language on the two Purchased Products’ labels.

Neutrogena also claims that “while Plaintiff alleges that the nineteen high SPF products’ ‘active ingredients are identical to Neutrogena 50 SPF products,’ this is demonstrably false with a cursory look at the Products’ labels.” Neutrogena concludes, “Regardless, Plaintiff fails to acknowledge that even if they did contain the same active ingredients (they do not), the Products contain differing concentrations of active ingredients, are intended for different consumers, for different uses, and that the packaging contains different representations.”

Neutrogena also argued that the class action lawsuit was pre-empted by rules about sunscreen issued by the FDA. “The FDA’s Final Rule codifies the agency’s regulation of [over the counter “OTC”] sunscreen products,” Neutrogena pointed out. “The FDA expressed its view that its Final Rule preempts ‘States from issuing requirements related to the labeling and testing of OTC sunscreen drug products that are different from or in addition to, or not otherwise identical with a requirement in the final rule.’”

Dapeer is represented by Jeffrey Ostraw, Jonathan Streisfeld, Jason Alperstein and Scott Edelsberg of Kopelowtiz Ostrow PA.

The Neutrogena Sunscreen Labeling Class Action Lawsuit is Nathan Dapeer v. Neutrogena Corp., Case No. 14-cv-22113, in the U.S. District Court for the Southern District of Florida.

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