Asterisk can't limit "reef safe" sunscreen claim to only 2 ingredients

Locklin v. StriVectin Operating Co., 2022 WL 867248, No. 21-cv-07967-VC (N.D. Cal. Mar. 23, 2022)

StriVectin makes sunscreen products that it labels “REEF SAFE* SUNSCREEN.” Fine print says that the product does not contain two particular ingredients that are widely thought to harm coral reefs. But plaintiff successfully alleged that the sunscreen contains four other ingredients that endanger the reefs (avobenzone, homosalate, octisalate, and octocrylene) and that the label is therefore misleading.

The complaint alleged that specific facts about the four chemicals were supported by studies, e.g., that octocrylene “has been shown to accumulate in various types of aquatic life” and “adversely impacts coral reefs, even at low concentrations, by accumulating in coral tissue and triggering mitochondrial dysfunction.” A graphic from the National Oceanic and Atmospheric Administration that describes how sunscreen washes off human skin and wreaks havoc on marine life, including coral lists octocrylene as an ingredient “that can harm marine life.” The U.S. Virgin Islands has banned octocrylene, and the Republic of the Marshall Islands has banned avobenzone. Palau recently enacted a nationwide ban on sunscreens containing any one of numerous ingredients, including octocrylene. And a bill in Hawaii would ban both of those.

StriVectin argued that the asterisk and back-package explanation sufficed to avoid misleadingness, because it had sufficiently defined “reef safe” narrowly to mean “does not contain two particular chemicals that harm coral reefs.”

The court thought this was “absurd.” While

asterisks might cabin sweeping claims or further define ambiguous language, … a company can’t say something misleading on the front of a label and escape liability by stating “that’s not actually what we mean” in fine print on the back. Imagine a product labeled “VEGAN*” on the front that contained chicken meat. The producer could seek no shelter by explaining on the back that “vegan” in this context means “contains no beef.” Or imagine a product labeled “SAFE* FOR HUMAN CONSUMPTION” on the front, with a caveat on the back stating that it “contains no cyanide.” If the product contained a lethal dose of ricin, the label would obviously mislead. StriVectin does not have free rein to define “reef safe” to mean anything it wants.

Here, the allegations indicated that StriVectin made a “promise” on the front that it “retracted” on the back.

Whether the studies cited proved reef endangerment wasn’t at issue at this stage. “Indeed, the complaint would plausibly allege that the chemicals harm the reefs even if it had cited to no study—because the body of the complaint ‘detail[s] the specific ingredients’ and how they threaten reefs, it does enough at this stage to state a claim.” In fact, “even if the chemicals pose only a serious—but ultimately uncertain—threat to coral reefs, that may well be enough to prove that the company’s ‘reef safe’ claim is false or misleading to a reasonable consumer who cares about avoiding using products that endanger the reefs.” Also, these weren’t lack of substantiation claims. The complaint identified “specific facts pointing to actual falsehood.”

And  Locklin had standing to pursue injunctive relief becaues he alleged that he would purchase StriVectin’s sunscreen again were the “reef safe” claim true.