Second Circuit finds false advertising claim against "reef safe" plausible

Richardson v. Edgewell Personal Care, LLC, 2023 WL 713094, No. 23-128 (2d Cir. Oct. 30, 2023)

Richardson brought NYGBL claims against Edgewell’s “Reef Friendly*” and “*No Oxybenzone or Octinoxate”/“*Hawaii Compliant: No Oxybenzone or Octinoxate” sunscreens, alleging that the products contain other reef-harming ingredients. The court of appeals reversed the district court’s dismissal of the complaint.

The “Reef Friendly*” front label “could plausibly mislead a reasonable consumer into thinking the products contain no reef-harming ingredients.” And the back-label disclaimer, “*No Oxybenzone or Octinoxate” or “*Hawaii Compliant: No Oxybenzone or Octinoxate,” was “incomplete because it makes no mention of the four other reef-harming ingredients found in the products.” Taken together, a reasonable consumer could be misled; the disclaimer wasn’t sufficiently clarifying. Richardson was not expected to “look beyond misleading representations” on the front label “to discover the truth from the ingredient list” that the product contains reef-harming ingredients. And even if she were, “a reasonable consumer cannot be expected to know the universe of chemicals harmful to coral reefs such that she could discern from an ingredient list describing the product’s contents in scientific terminology whether a product is in fact ‘Reef Friendly.’”

This reasoning also necessitated reversal on the express warranty claim.