"Face" sunscreen 2x as expensive as regular plausibly misleading when formula was the same

Akes v. Beiersdorf, Inc., 2023 WL 5000434, No. 3:22-cv-869 (JBA) (D. Conn. Aug. 4, 2023)

Akes brought the usual California claims/unjust enrichment, alleging that she was misled by the labeling of the 2.5-ounce bottle of Coppertone Sport Mineral sunscreen as “Face 50” to believe that it was “specifically designed” or “specifically formulated” “for use on the face.”

The label included: “FACE,” “Won’t Run Into Eyes,” and “Oil Free,” the latter two of which were allegedly “face-specific representations.” However, the sunscreen is allegedly identical to the sunscreen in the larger 5-ounce bottle, which costs half as much per ounce. Coppertone argued that the higher price couldn’t be deceptive and that “[t]here is nothing deceptive about emphasizing different but equally true aspects of a product to different market segments, or pricing products differently when sold to different market segments or in different retail channels.”

The court found it was plausible that the label implied that it was specifically designed/formulated for the face, not just suitable for the face—that’s a factual issue. “While labeling products ‘vanilla’ or ‘diet’ was found insufficiently specific to convey the particular representations that the plaintiffs in those cases asserted, here the use of the word ‘FACE’ on a lotion bottle is plausibly understood by consumers to differentiate between the intended applications of sunscreen—face or body.” Although the mere fact of different prices doesn’t violate consumer protection laws, it could contribute to deceptiveness: the price disparity plausibly reinforced the deception that the “FACE”-labeled product “contained more expensive but specifically formulated facial sunscreen.”