reasonable consumers wouldn't think salicylic acid was natural

Mustakis v. Chattem, Inc., 2022 WL 714095, No. 20-CV-5895 (GRB)(AYS) (E.D.N.Y. Mar. 3, 2022)

Do reasonable consumers think salicylic acid is natural, whether or not it can be derived from natural sources? The court says no, which is a bit weird given that it apparently can be.

Mustakis sued Chattem, the maker of “Selsun Blue Naturals” anti-dandruff shampoo, alleging that its name misled consumers into believing that the shampoo contains no synthetic ingredients in violation of GBL §§ 349 & 350/leading to unjust enrichment.

The term “Naturals” appears prominently on the front label in green font. Directly below, it says “Antidandruff Shampoo / Salicylic acid 3%.” The shampoo also contains synthetic ingredients including disodium EDTA, panthenol, and benzyl alcohol.

Looking at the label as a whole, “it is implausible that a reasonable consumer would be misled into believing the Product contains no synthetic ingredients…. No reasonable consumer would believe that a product containing three percent salicylic acid is entirely free from synthetic ingredients.”  Footnote: The plaintiff didn’t allege that salicylic acid was an unnatural ingredient. “Although defendant’s disclaimer defense is premised upon the assumption that the reasonable consumer would believe salicylic acid is artificial, fascinatingly, salicylic acid can be obtained from white willow bark and wintergreen leaves.” But today it is commercially biosynthesized from phenylalanine. The complaint did allege that “citric acid” no longer comes from fruit.

The front label prominently disclosed the exact proportion of salicylic acid: three percent. And the label didn’t claim that “Selsun Blue Naturals” was “all natural” or “100% natural.” Also, the back label discloseed “the synthetic ingredients plaintiff complains of as well as a number of natural ingredients such as lavender and rosemary extract, which supports the defendant’s use of the term ‘Naturals.’”

“Although a number of courts have found plausible deceptive acts and false advertising claims in cases involving ‘natural’ products, a line must be drawn. Here, the Product’s front label conspicuously discloses that the shampoo is three percent salicylic acid, an ingredient which the reasonable consumer would, it would seem, assume is unnatural.” Plaintiff alleged that he and other consumers “value natural products for important reasons, including the belief that they are safer and healthier than alternative products.” But that didn’t make sense for this product, where “the principal ingredient prominently featured on the front of the Product has long been known to be anything but safe and healthy. As the front label of the Product prominently identifies this chemical on the same line as the text which identifies the product in the bottle, it seems implausible that a reasonable consumer could be misled.”