Friday, August 19, 2011

Class Certified in False Labeling Action Against Sunscreen Manufacturer

This posting was written by Jody Coultas, Editor of CCH State Unfair Trade Practices Law.

A trial court erred by refusing to certify a sunscreen purchaser’s California Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA) claims against a sunscreen manufacturer for false labeling, according to a California appellate court.

The purchaser sought to certify a class of all California residents who purchased sunscreen from the manufacturer in the class period based on alleged misrepresentations of the sunscreen’s UVA protection and waterproof properties.

Specifically, the purchasers claimed:

(1) The sunscreen was labeled as “UVA/UVB sunblock” but provided insignificant protection from the sun’s UVA rays;

(2) The sunscreen claimed to be waterproof but was not impenetrable to or unaffected by water; and

(3) The sunscreen was not “ultra sweatproof” as labeled.

The trial court found that the class was ascertainable and the purchaser’s UCL claims were typical of the class, but that individual issues predominated because all class members would need to prove they relied upon, were deceived by, and suffered damages as a result of the manufacturer’s conduct.

With regard to the CLRA claims, the trial court also found that individualized issues concerning reliance, causation, and damages predominated. Specifically, the trial court declined to presume reliance because the alleged misrepresentations were uniform but not material.

The UCL does not require individualized proof of deception, reliance, or injury, and the purchaser need only show that members of the public were likely to be deceived by the false labeling, the appellate court held.

To establish common damages, the purchaser may establish the measure of restitution to which class members are entitled by use of survey evidence and expert testimony. In this case, damages would be based on the difference between what was paid and the value of what was actually received.

Courts should presume reliance where a reasonable man would have relied on the misrepresentations and the misrepresentations were significant in the consumer’s purchase decision, according to the court. The label claims were material to a reasonable person because the protection provided by sunscreen is extremely important to a purchaser. Because the same labeling misrepresentations were made to all class members, the misrepresentations were material and a presumption of reliance should have been applied.

The August 9 decision is Gaston v. Schering-Plough Corp., CCH State Unfair Trade Practices Law ¶32,301.

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