A putative class action filed Tuesday in federal court in Newark alleges Neutrogena, a subsidiary of Johnson & Johnson, misled consumers by labeling sunscreen products as “sunblock,” “waterproof” and “sweatproof” despite FDA regulations banning those terms.
The plaintiffs, in Epstein v. Neutrogena Corp., 12-cv-7576, claim that the term sunblock is deceptive because the defendants knew or should have known that their products do not block all, or anything close to all, of the sun’s harmful rays, and that the terms waterproof and sweatproof are deceptive because defendants knew or should have known that the protection provided by their products diminished after exposure or immersion in water or sweat, and was thus not truly waterproof or sweatproof.
The plaintiffs say the Food and Drug Administration first directed that the terms “sunblock” and “waterproof” should not be used in sunscreen labeling in a tentative final monograph in 1993. The agency repeated the proscription in a final monograph in 1999, saying the term “sunblock” “will be viewed as an absolute term which may mislead or confuse customers into thinking that the product blocks all light from the skin.”
Also in the 1999 monograph, the agency said the term “waterproof” is not permitted on product labeling because it “could be interpreted by consumers to describe something that is completely resistant to water regardless of time or immersion.” The agency suggested the phrase “very water resistant” be used instead of “waterproof.”
In 2011, the FDA issued a final rule concerning sunscreen labeling, which continued the proscription on the terms “sunblock” and “waterproof” and also declared the term “sweatproof” as false and misleading.
“By ignoring the FDA’s findings detailed herein and the overwhelming scientific evidence that Defendants’ labeling and advertising practices are leading people to stay out exposed to the sun longer and therefore to unnecessarily put themselves at risk for, among other things, contracting melanoma, defendants have acted with a willful and conscious disregard for the health and safety of others,” the plaintiffs allege.
The suit seeks certification of a nationwide class of persons who bought Neutrogena sun protection products within four years of the complaint’s filing.
Class representative Michael Epstein says he bought several Neutrogena sun protection products in the belief that they provided sunblock, waterproof and sweatproof sun protection, and would not have purchased those items if he knew the representations were false.
The plaintiffs’ lawyers are Mitchell Twersky of Abraham, Fruchter & Twersky in New York and Gary Graifman of Kantrowitz, Goldhamer & Graifman in Montvale.
Johnson & Johnson’s communications department did not respond to a reporter’s calls requesting comment about the case.
Two similar suits are pending in federal court in Los Angeles, Franco v. Neutrogena, 12-cv-10191, and Contreras v. Johnson & Johnson Consumer Products, 12-cv-7099. The Franco plaintiffs make allegations about Neutrogena sunscreen products similar to those in the Epstein case, and the Contreras plaintiffs make the same allegations about Aveeno sunscreen products, which are also produced by Johnson & Johnson. On November 28, the Franco case was transferred from San Diego, where it was first filed, to Los Angeles and consolidated with the Contreras case.