Monday, October 11, 2021

Juxtaposition doesn't necessarily mean one claim bleeds into another

Engram v. GSK Consumer Healthcare Holdings (US) Inc., 2021 WL 4502439, No. 19-CV-2886(EK)(PK) (E.D.N.Y. Sept. 30, 2021)

GSK sells “2 in 1 Lipcare” Chapstick: it provides moisturization and sun protection … but the former lasts longer than the latter. Engram alleged that this was misleading; the court disagreed and dismissed the complaint under NY GBL §§ 349 and 350 (and unjust enrichment).

The front of the package and the front of the tube both contain a circle, bisected horizontally. In the top half of the circle is the phrase “8 HOUR MOISTURE,” written in white letters against a blue background. In the bottom half, in blue letters on a white and gray background, is the phrase “SPF 15.”


Could the proximity of these claims lead a reasonable consumer to conflate them and think that they’d get 8 hours of SPF 15 protection? The court thought not. The back tells users to “apply liberally 15 minutes before sun exposure”; “reapply at least every 2 hours”; and “use a water resistant sunscreen if swimming or sweating.” The amended complaint alleged that a third-party survey showed that “259 of [respondents] (64.4%) believed that the Product provided 8 hours of sun protection based on the packaging.” But the respondents were shown a picture of the front of the Chapstick tube, but not the full package — including the reverse of the package, where the direction to “reapply at least every 2 hours” appears.

Context is key, but some context matters more than others:

Where the front of a package makes a bold and blatant misstatement about a key element of a product, there is little chance that clarification or context on the reverse of the package will suffice to overcome a deception claim (especially at the motion-to-dismiss stage). But when the front of the package is better characterized as ambiguous than misleading, courts looking at the alleged misrepresentations in their full context and are more likely to grant a motion to dismiss.

There’s a spectrum of claims from absolutely true, to ambiguous, to misleading, to outright false, and this case was at most ambiguous. “From the front of the package itself, it is plain that the Defendant is emphasizing the moisturizing properties of the product.”  But the package made no durational claim about the SPF protection on the front at all. The back of the package put any ambiguity to rest. “[I]t is not too much to expect a reasonable consumer to review the directions on an SPF product for information on how often to reapply it — particularly where, as here, a similar set of directions is present on all sunscreen products pursuant to FDA regulations.” It was also relevant to the court that the tube and packaging “both provide limited space on which to advertise the product and publish the required Directions…. [T]he Defendant’s ability to separate the moisture and SPF claims is limited by the amount of packaging real estate available. This limit makes the presence of a clear disclaimer on the reverse all the more salient.”

The survey didn’t help because “the key question was phrased so as to put respondents in an untenable position.” It asked: “Viewing the packaging above, how many of hours of SPF 15 sun protection do you think the product provides?” But respondents only saw the front of the package, “which does not contain any answer to the question posed.” Respondents were thus differently situated from the “reasonable consumer.”

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