Tuesday, August 11, 2009

Too much in the sun: Neutrogena v. Coppertone

Schering-Plough Healthcare Products, Inc. v. Neutrogena Corp., --- F.Supp.2d ----, 2009 WL 2407207 (D.Del.)

Schering-Plough (Coppertone) sued Neutrogena for false advertising of its sunscreens. Neutrogena counterclaimed, but its allegations were not at issue on this motion.

Sun can damage skin from UVA or UVB rays; SPF characterizes protective ability as to UVB, but the parties disputed whether it also covers UVA rays. UVA protection can also be quantified by using protection factor A (PFA). Sunscreens need to be photostable to work well, and one of the most effective chemicals in blocking UVA rays, avobenzone, is not photostable. Thus, Neutrogena patented a formulation of avobenzone with other chemicals, using the name Helioplex®. Coppertone sunscreens protect against UVA and UVB and are photostable, but don’t use Helioplex.

In March 2009, Neutrogena began giving retail stores an in-store display case that contained an illustration comparing the effects of a layer of SPF “without Helioplex®” to the effects of a layer of SPF “with Helioplex®” on the underlying skin. The illustration of “without Helioplex” skin showed UVA rays, represented as arrows, penetrating the skin; “with Helioplex” skin fended off both UVA and UVB. Coppertone argued that this is false because its products do protect against UVA rays. Neutrogena’s current display doesn’t use the illustration, but it’s still in a pamphlet attached to the display, as well as in its “club pack” sold in large retail stores like BJ’s.

Coppertone also challenged a print ad with the headline “Best line of sport sun protection.” Coppertone claimed head-to-head equivalence or superiority. The print ad had a bar graph directly comparing Neutrogena’s Ultimate Sport line to Coppertone’s Sport line. The bar graph compares “UVA” and “SPF” protection; the combined bars for Neutrogena are twice the height of the corresponding Coppertone bar. Text: “With Helioplex®, UVA defense stays strong to help provide the highest combined UVA/UVB protection across the entire Neutrogena Ultimate Sport® line. Precisely why it's the best line of sport sun protection.” Coppertone alleged that the graph was inaccurate, not to scale, and measured irrelevant features. It sought an injunction on the ground that the illustration necessarily conveyed that sunscreens without Helioplex don’t protect against UVA, and that the bar graph falsely implied that Coppertone only provides half as much protection as Neutrogena, and double-counted UVA protection.

Coppertone’s witness testified that sunscreens without Helioplex protect against UVA in the same was as sunscreens with Helioplex: by photostabilizing avobenzone. Neutrogena’s witness testified that the ad communicated the importance of UVA protection, and that there was no specific comparison.

Neutrogena commissioned independent PFA testing, which showed about a 40% difference between its products and the top ten-selling Coppertone Sport products, advantage Neutrogena. Coppertone’s tests showed a much lower average value for Neutrogena than Neutrogena’s tests, and a slightly lower value for Coppertone, producing a 30% difference, advantage still Neutrogena. The results of the SPF comparisons are unclear, because the products in the two product lines vary. Anyway, Coppertone argued that, even using Neutrogena’s own calculations, the difference is 40%, not 100% as shown by the bar graph, and that when a party chooses to make a scientific and mathematical comparison, it has to do so in a scientifically accurate manner. Coppertone also argued that the whole endeavor was distorted by the fact that “averaging” across a product line is just wrong: consumers don’t apply 12 sunscreen products to get the “best average” protection; they pick a particular protection level. What they want to know is whether one 12 SPF product is better than another 12 SPF product.

Furthermore, the bar graph allegedly double-counts UVA by measuring UVA and SPF separately, even though SPF indicates combined UVA/UVB protection in about 20%/80% proportions. Neutrogena’s parent company, Johnson & Johnson, itself argued that SPF has to be understood as including UVA, and that to describe it as a UVB measure alone is confusing to consumers, in response to a 2007 proposed rule change by the FDA.

Neutrogena responded that the ad doesn’t equate SPF with UVB protection alone; that doing so would not be inaccurate because SPF and PFA measure different things, and SPF is basically about UVB; and that Neutrogena beats Coppertone across the product lines.

The first argument was about “without Helioplex”: is it literally false to say that sunscreens “without Helioplex” don’t protect against both types of rays? The court found that the illustrations are not unambiguous: there’s no explicit comparison with other products. The illustration could be interpreted to mean that, without sunscreen, one has no protection against UVA rays, but with Helioplex one does.

Second, the “best line of sport sun protection” claims: Coppertone argued that this wasn’t puffery because it was linked to a specific attribute. The court disagreed. “Sport sun protection” is more vague than SPF or PFA, and was merely puffery.

Third, the bar graph: the first subissue was whether the graph improperly double-counts UVA protection. As a technical matter, SPF measures both types of rays, with UVA only a small proportion. There’s some evidence that consumers view SPF as a UVB measure, and the FDA has said as much. The court found that the graph was not unambiguous—the meaning of SPF is contested and needs further development. It’s not false on its face, because it doesn’t equate SPF with UVB alone, and it treats both parties’ products the same way.

The next subissue was whether Neutrogena’s representation of 100% more UVA/SPF protection for Neutrogena Sport was literally false. Coppertone offers a broader range of SPFs in its Sport line—it starts with 15 SPF, while Neutrogena starts with 55 SPF, and they both go to 70. So naturally Coppertone’s SPF average across products is lower. Neutrogena’s PFA scores across product lines averaged a near 100% difference. The court found that it was not literally false to compare product lines by raw PFA and SPF scores, even though comparing the percentages of UV rays blocked would result in a lower differential. Coppertone, on its own site, compares various Coppertone and Neutrogena products by their PFA scores.

The court dealt with what I think is the better argument—that comparing multiple products is “meaningless”—by concluding that there was no literal falsehood in doing so. Neutrogena argued that comparing an entire product line was meaningful because, regardless of which Neutrogena Sport product a consumer buys, she’ll be assured an excellent level of protection; the court thought this was a matter for survey evidence and further factual development. Preliminary injunction denied.

(I note that it's not clear to me that the image I've used is covered by any of these claims, but it sure seems to be making an inappropriate comparison: if Coppertone has a 70 SPF product, what on earth is Neutrogena doing comparing its 70 SPF product to Coppertone's 30 SPF product? Even if--and I'm just speculating wildly--Coppertone's leading product is 30 SPF and Neutrogena's leading product is 70 SPF, that just means that the brands' core consumers have different tanning preferences, not that it's okay to compare pints to quarts or sedans to minivans.)


Elizabeth Yalkut said...

This is ridiculously fascinating, and I can't pinpoint why.

Anonymous said...

Thing is, on the National Cancer Institute website, it states that there is no scientific evidence that spf over 30 has any effect on reducing rates of skin cancer. Indeed, most dermatologists will tell you to use a block with 30 spf and not bother with the higher scored creams. Given that the importance of coverage relates to protection against skin cancer, the idea of "more coverage" or "more protection" is itself meaningless beyond this threshhold, no matter how the tests come out. --Robin

Anonymous said...

Probably PFA, a measure of short wavelength UVA, will be shown to not be that important. Long wavelength UVA protection is what is most directly linked to sun induced melanoma and solar aging. Critical wavelength measurement is the way to evaluate long wavelength UVA protection and the AAD recommends products have a CW over 370nm.

that haveing been said, neutrogena with helioplex has a CW of around 372 and the others mentioned likely have a similar CW if they are using polycrylene (polyester 8).