Coppertone Sunscreen Maker Seeks Dismissal of SPF Class Action

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Bayer Healthcare LLC and Merck & Co. Inc. argued last week that a class action lawsuit alleging Coppertone Sport sunscreen SPF levels are overstated should be dismissed.

Lead plaintiff Andrew Roseman alleged in his class action lawsuit that Coppertone Sport is advertised as having an SPF of 30, but testing revealed that the lotion and spray product only had an SPF of 14.8.

However, the makers of Coppertone Sport argue that the plaintiff relied on testing that does not meet FDA standards.

Roseman, argues Bayer and Merck in their motion to dismiss, relies on Consumer Reports testing. Consumer Reports does not test using FDA protocols, say the defendants, so there is no way of knowing if the product met FDA standards for testing.

Bayer and Merck also point out in their motion to dismiss the Coppertone class action lawsuit that Food and Drug regulations take precedence over any other regulations regarding the testing of sunscreen.

“FDA regulates SPF testing through precise and complex regulations, and federal law expressly preempts ‘any requirement that is different from or in addition to, or that is otherwise not identical with,’ those regulations,” argues the motion to dismiss the Coppertone sunscreen class action.

“Consumer Reports does not deny that its ‘test methods aren’t the same as required by the product manufacturers to assign the SPF designation, and can’t be directly compared with a label claim.’ Plaintiff’s reliance on Consumer Reports is misplaced, and given that testing’s divergence from FDA standards, any claim based on it is preempted.”

Bayer and Merck also take issue with Roseman’s assertion that he conducted his own independent testing that complied with FDA standards that showed Coppertone Sport’s SPF was not as high as advertised.

“Plaintiff offers nothing to support his assertion that he complied with FDA testing methods— nothing at all,” states the motion to dismiss the Coppertone class action. “He does not attach his testing protocols or results (as Plaintiffs often do in similar cases), and he alleges no concrete, verifiable facts regarding what testing he conducted or under what conditions those tests were performed.”

The defendants also argue that if the Coppertone class action lawsuit isn’t dismissed, it should at a minimum be refined. Bayer and Merck argue that since the plaintiff allegedly purchased Coppertone Sport from a Rite Aid, and not from them directly, he is an indirect purchaser and not entitled to claims of breach of good faith and fair dealing, unjust enrichments, and breach of implied duties.

In a separate motion to dismiss the Coppertone sunscreen class action lawsuit, Merck also point out that it never sold a product called Coppertone Sport High Performance SPF 30.

“Merck never manufactured or marketed Coppertone sunscreen, and even if we were to pretend that it had, Plaintiff does not allege that he bought anything from or made by Merck,” states Merck in its motion to dismiss the Coppertone class action.

Roseman is represented by attorneys Stephen P. DeNittis, Joseph Osefchen and Shane T. Prince of DeNittis Osefchen Prince PC, and by Janine Lee Pollack, Theodore B. Bell and Carl V. Malmstrom of Wolf Haldenstein Adler Freeman & Herz LLP.

The Coppertone Sunscreen SPF False Advertising Class Action Lawsuit is Roseman v. Bayer Healthcare LLC and Merck & Co. Inc., Case No. 1:17-cv-13308, in the U.S. District Court for the District of New Jersey.