Judge Dismisses Coppertone Sunscreen SPF Class Action Lawsuit

A federal judge tossed a Coppertone sunscreen SPF class action lawsuit, writing that the U.S. Food and Drug Administration (FDA)held regulatory power thanks to the doctrine of primary jurisdiction.

According to the original class action lawsuit, lead plaintiff Danika Gisvold alleged that Merck & Co. misrepresented the effectiveness of high-SPF Coppertone sunscreen products ranging from a rating of 55 to 100+. The original complaint noted that the FDA had proposed a regulation restricting labeling to “SPF 50+” because of the lack of evidence that higher SPF ratings translated into improved protection from sunburn or other skin damage.

Gisvold argued in her class action lawsuit that the issue was not the labeling on its own, but rather the fact that Merck did not note the relative decline in relative efficacy in messaging to consumers. The judge described this as alleging that the claims “are false, misleading and reasonably likely to deceive.” The class action lawsuit also alleges that the Coppertone sunscreen SPF issues are not meant to interfere with the authority of the federal agency.

However, in the judge’s view, the fact that the FDA considered such a regulation put it at odds with the goal of the Coppertone SPF class action lawsuit. Since the agency considered the issue under its regulatory authority, in the order granting Merck’s motion to dismiss the Coppertone class action lawsuit, the judge noted that federal agencies have primary jurisdiction over issues where Congress has given them powers. According to the opinion, the Food, Drug, and Cosmetic Act provides sufficiently detailed information allowing for the FDA to decide what and what cannot appear on sunscreen packaging.

More importantly, although regulations promulgated by the FDA are not an “exclusive list of false and/or misleading claims, its scope is limited to claims similar to those listed,” the judge wrote. “Plaintiff does not argue, nor could she, that premium pricing or the lack of a disclaimer regarding proportional clinical benefits of SPF 50+ products are similar to the claims precluded by the regulation.”

The Coppertone sunscreen SPF complaints are in large part similar to issues raised by consumers in food mislabeling class action lawsuits. Lawyers for these groups argue that the FDA does not have the manpower to enforce various regulations. Rather than trying to impinge on its authority, they argue that consumer litigation augments the agency’s work regarding food mislabeling and other issues.

Gisvold is represented by James R. Patterson of Patterson Law Group.

The Coppertone Sunscreen SPF Class Action Lawsuit is Danika Gisvold v. Merck & Co. Inc., et al., Case No. 14-cv-01371, in the U.S. District Court for the Southern District of California.