On January 10, 2018,  the makers of Banana Boat sunscreen asked a New York federal judge to toss a proposed class action claiming

they falsely exaggerate the sun protection level on its children’s sunscreen as SPF 50, when in fact it

provides much less protection, saying the Food and Drug Administration should take up the dispute.

The consolidated, putative class action claims that Edgewell Personal Care Co., Playtex Products LLC

and Sun Pharmaceutical LLC, which jointly manufacture the sunscreen, knowingly claimed on their

labels that the sunscreen offered more sun protection than it actually does.

During oral arguments before U.S. District Judge Kiyo Matsumoto in Brooklyn over a bid to nix the

case, an attorney for Edgewell, Playtex and Sun, Michael J. Reiss of Latham & Watkins LLP, argued

that the case should be stayed or dismissed, because the doctrine of primary jurisdiction leaves it to

the FDA to decide if an agency-regulated product is in compliance with its rules.

“The FDA should be given the opportunity to either take up plaintiffs’ claims and investigate or not,”

Reiss told Judge Matsumoto. The plaintiffs say the label of and marketing materials for Banana Boat Kids SPF 50 prominently

claim the product has a Sun Protection Factor of 50, defined as preventing sun damage for the user

for 50 times longer than unprotected skin.

In May 2016, however, Consumer Reports magazine performed tests on Banana Boat Kids and

Banana Boat Kids Tear-Free Sting-Free products and found their actual SPF was only 8, well below

the American Academy of Dermatology’s minimum recommendation of SPF 30.

The plaintiffs commissioned their own FDA-compliant testing of their own, and found that Banana

Boat Kids SPF 50 sunscreen lotion had only an SPF of 12.69, according to an amended complaint.

Edgewell, Playtex and Sun contend that the FDA is already looking into the matter, noting that

immediately after the filing of the seven suits that make up the consolidated class action, the FDA

asked for bids for SPF testing of 20 unspecified sunscreen products, which may include the

challenged Banana Boat Kids lotion.

In a situation in which the FDA is addressing the same issue, courts must give deference to the

agency, which is in the best position to interpret its own rules and resolve any ambiguities, the

defendants claim.

“At least in the first instance, go to the FDA and see what they have to say,” Reiss said.

An attorney for the proposed class, Stephen DeNittis of DeNittis Osefchen Prince PC, told Judge

Matsumoto that FDA action isn’t required, since this is “nothing but a run of the mill deceptive

labeling case.”

“We’re not asking the FDA to adopt a new rule,” DeNittis said. “This is just a basic claim that the

defendants promised an SPF of 50, and we were duped.”

Banana Boat Looks To Ice False SPF Advertising Class Action – Law360