Court Partly Dismisses of Banana Boat ‘Reef Friendly’ Sunscreen Class Action

The Northern District of California issued an order on Tuesday granting in part a motion to dismiss a case filed in September 2021 against Edgewell Personal Care, LLC alleging the company misrepresented its sunscreen products by labeling them as “reef friendly” when they actually contained numerous harmful ingredients.

By misleading consumers in an effort to sell their product, the plaintiff argued that the “defendant sought to take advantage of consumers’ desire for sunscreens that are safe for coral reefs and/or the marine life and related ecosystems that depend on them, while reaping the financial benefits of using less desirable, harmful, and less costly chemicals in the Products.”

The complaint cited a violation of the California Unfair Competition Law (UCL), the California False Advertising Law (FAL), the California Consumers Legal Remedies Act (CLRA), breach of warranty, and unjust enrichment/restitution.

Edgewell’s motion to dismiss argues that the plaintiff’s CLRA, UCL, and FAL claims fail to meet the reasonable consumer standard and that the breach of warranty claim should be dismissed on the grounds that the defendant never made an express or implied warranty and that an implied warranty claim fails for lack of privity (since the parties did not have a contractual obligation to one another).

The court concluded that in the plaintiff’s UCL, FAL, and CLRA claims, they did meet the reasonable consumer standard for stating a claim, which requires that a plaintiff “show potential deception of consumers acting reasonably in the circumstances – not just any consumers.” The Court explains that the defendant’s argument that a consumer could accurately interpret the label and recognize that it was only referencing oxybenzone and octinoxate, and not other harmful chemicals, fails under the reasonable consumer standard.

The defendant’s motions to dismiss for statutory standing, request for equitable relief, and preemption and primary jurisdiction were also denied by the Court.

The defendants also argued that the plaintiff’s breach of warranty claim should be dismissed. The court granted this motion of dismissal as to the breach of implied warranty claim, since the privity exception only applies to express warranties, which the plaintiff did not hold with the defendant.

The court also sided with the defendants in their argument that the plaintiff’s complaint contained vague references to both advertising and marketing, when in actuality they were talking about the singular reef friendly claim. The Court stated that the plaintiff “does not identify any other marketing claims or forms of advertisements in her Complaint,” and granted the motion to dismiss.

Ultimately, the motion to dismiss was granted as to the breach of implied warranty and for the plaintiff’s ability to pursue liability for advertisements other than the reef friendly claims. In all other respects, the motion to dismiss was denied. The plaintiff was granted leave to amend their complaint by Judge Richard Seeborg.

The plaintiff was represented in the litigation by Clarkson Law Firm, Faruqi and Faruqi, and Bursor & Fisher. The defendant was represented by Stinson and Selman Breitman.