One of the world’s largest makers of household chemical products, SC Johnson, was unable to persuade a federal judge to wipe away a class action lawsuit, accusing the company of misleading consumers about the SPF rating of its Babyganics mineral sunscreen.
In September 2017, four mothers, including two Cook County women, sued SC Johnson & Son Inc., and VMG Partners LLC, saying testing on Babyganics sunscreen and lotion revealed it to have a sun protection factor of 25 rather than the advertised 50. The women voluntarily dismissed VMG from the complaint in October, without prejudice, after which SC Johnson moved to dismiss.
Theodore Bell | Wolf Haldenstein Adler Freeman & Herz
In an opinion issued March 29 in Chicago, U.S. District Judge Charles R. Norgle said the complaint will continue. There are more than 100 additional plaintiffs in the suit representing consumers from Illinois, California and Washington. The plaintiffs also seek to represent a nationwide class of consumers who purchased Babyganics.
SC Johnson had argued the case should be tossed because the federal Food Drug and Cosmetics Act pre-empts plaintiffs from relying on test results from a Consumer Reports article to state their claim. While the plaintiffs agreed the magazine does not adhere strictly enough to Food and Drug Administration protocol, they also asserted “the basis for their claims is the independent testing they conducted which established that the SPF rating of the products is actually 30 or less,” despite the label allegedly claiming the product had an SPF of 50, according to Norgle.
Further, the women said their independent testing does comply with federal regulatory standards. Although SC Johnson alleged the plaintiffs offered insufficient details about the independent tests, Norgle said the company didn’t cite any cases supporting its claim the test results needed to be attached to the complaint.
Norgle also rejected SC Johnson’s assertion the women lacked standing to pursue injunctive relief, an argument based on a 2014 Seventh Circuit Court of Appeals opinion in Camasta v. Jos. A. Bank Clothiers, which SC Johnson’s lawyers argued established injunctive relief isn’t available to plaintiffs who are aware of an alleged deceptive sales practice. Norgle said that logic would nullify “practically all false advertising cases” and said the women’s allegations are sufficient.
SC Johnson also argued any claims relating to the sunscreen spray should be dismissed because none of the named plaintiffs — Laura Carroll, Katherine Exo, Armand Ryden and Katharine Shaffer — purchased that product. But Norgle said the lotion and spray are substantially similar enough to allow the class to reasonably include people who purchased either product based on a promise of 50 SPF.
“Both products are mineral-based sunscreens,” Norgle wrote. “Plaintiffs allege both products are marketed the same way, have near identical packaging and are both marked with a SPF rating of 50+. … Based on the complaint, the only difference between the products is how the sunscreen is dispensed from the container in different forms.”
Norgle also would not strike the complaint’s proposed nationwide warranty, implied contract and unjust enrichment classes, saying doing so would be premature because “material differences in applicable state law can be resolved through different means at the class certification stage.”
He also determined the women satisfied their requirement to notify the company of their concerns with the products before filing a breach of warranty claim, and the plaintiffs plausibly alleged facts sufficient enough to bring a claim of violating the Illinois Consumer Fraud and Deceptive Businesses Practices Act, specifically by asserting they would not have bought the Babyganics sunscreen, or paid as much for it, but for the advertising of an SPF exceeding 50.
The plaintiffs are being represented by attorneys Theodore B. Bell, Carl V. Malmstrom and Janine Lee Pollack, of Wolf Haldenstein Adler Freemen & Herz, and Stephen P. DeNittis, Joseph Osefchen and Shane Prince, of DeNittis Osefchen Prince.
SC Johnson, whose portfolio of consumer product brands includes such names as Raid, Off, Pledge, Saran Wrap, Shout, Windex and Ziploc, among others, is represented by the firms of O'Melveny & Myers LLP, of Newport Beach, Calif., and Winston & Strawn, of Chicago.
VMG Partners is represented by the firms of Bradley Riley Jacobs PC, of Chicago, and BraunHagey and Borden LLP, of San Francisco.