Babyganics SPF Class Action Lawsuit Survives Motion to Dismiss

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Last week, an Illinois federal judge denied a request by S.C. Johnson & Son Inc. to dismiss a class action lawsuit alleging it marketed its Babyganics mineral-based sunscreens with a false Sun Protection Factor (SPF) rating.

U.S. District Judge Ronald Norgle found that the plaintiffs had conducted independent testing that was FDA-compliant and determined that the Babyganics mineral-based sunscreen is no more than 30 SPF instead of the advertised 50+ SPF. Therefore, their allegations are not preempted by the federal Food, Drug and Cosmetic Act, the judge said.

“Plaintiffs have alleged sufficient details regarding the independent testing of the products to overcome defendant’s motion to dismiss,” Judge Norgle said in his order.

S.C. Johnson filed a motion to dismiss the Babyganics sunscreen SPF class action lawsuit in October, claiming the allegations are preempted because they were based on an article in Consumer Reports that found 74 percent of mineral-based sunscreens it tested did not have the advertised SPF.

According to S.C. Johnson, the plaintiffs failed to provide sufficient information about their independent testing and they relied on the Consumer Reports testing, which the company claims is not FDA-compliant.

In his March 29 order, Judge Norgle found that the plaintiffs adequately alleged that their claims are not based on the Consumer Reports testing and that their independent testing of the Babyganics mineral-based sunscreen products is FDA-compliant.

Judge Norgle was also not persuaded by S.C. Johnson’s argument that the consumers could not bring claims about the Babyganics sunscreen spray because they only purchased the sunscreen lotion version of the product. He found that there weren’t any material differences between the products that were relevant to the claims lodged in the Babyganics sunscreen SPF class action lawsuit.

The judge also found that the plaintiffs adequately argued that they would not have purchased the Babyganics sunscreen products, or would have paid less for them, if their SPF labels were accurate.

The plaintiffs filed the Babyganics SPF class action lawsuit in August 2017, claiming they discovered the sunscreen provided significantly less protection than the advertised 50+ SPF. They point to a 2016 Consumer Reports article that states 43 percent of sunscreens fail to meet the advertised SPF claim.

“Consumers reasonably expect that a bottle labeled ‘SPF 50+’ will have an SPF of at least 50, and not a significantly lower amount of protection,” the plaintiffs allege in the Babyganics sunscreen class action lawsuit.

The Babyganics SPF class action lawsuit was filed on behalf of a proposed Class of U.S. consumers who purchased Babyganics SPF 50+ mineral-based sunscreen spray and/or lotion.

The plaintiffs are represented by Theodore B. Bell, Janine Lee Pollack and Carl V. Malstrom of Wolf Haldelstein Adler Freeman & Herz LLC and Joseph A. Osefchen, Stephen P. DeNittis and Shane T. Prince of DeNittis Osefchen Prince PC.

The Babyganics Mineral-Based Sunscreen SPF Class Action Lawsuit is Laura Carroll, et al. v. S.C. Johnson & Son Inc., et al., Case No. 1:17-cv-05828, in the U.S. District Court for the Northern District of Illinois.