Los Angeles, CA: Merck & Co. Inc, is facing a consumer fraud class action lawsuit over allegations the company is overcharging for its Coppertone sunscreen products with Sun Protection Factors (SPF) of 55 and higher because they contain "virtually identical"active ingredients as the Coppertone SPF 50 products.
Filed by plaintiff Danika Gisvold, the lawsuit claims Merck is participating in a "false, misleading and deceptive"advertising campaign. Specifically, Gisvold alleges the US Food and Drug Administration has reviewed SPF ratings since 1978, and has found that SPF values over 50 don't provide an increase in protection over SPF 50 products.
According to the complaint, while SPF value is an indicator of the level of sunburn protection provided by the product, and consumers have learned over time to associate higher SPF with greater protection, the SPF 100+ products do not provide twice the ultraviolet B protection of an SPF 50 product.
"In fact, none of the sunscreen products in the Coppertone SPF 55-100+ collection provide any additional clinical benefit over the Coppertone SPF 50 products,"according to the complaint, which also notes that the FDA had voiced concern about labeling a product with a specific SPF value higher than 50. "The FDA' findings are based on, inter alia, scientific tests that demonstrate SPF 100 sunscreens block 99 percent of UV rays, while SPF 50 sunscreens block 98 percent, an immaterial difference that provides no additional clinical benefit to consumers against sunburn."
The lawsuit alleges the only reason consumers would purchase an SPF product over SFP 55 is because they believe it provides greater protection than a lesser SPF product, therefore, Merck' Coppertone SPF 55- 100 are overpriced. "As a result of Merck' superior UVB protection claims, consumers, including plaintiff and members of the proposed class, have purchased products that do not perform as advertised,"the complaint states.
The plaintiff is seeking to represent a national class of plaintiffs claiming Merck' representations of superior UVB protection are false, misleading and reasonably likely to deceive the public, and that Merck spreads the false claims through advertising inserts, the Internet and labels "where they cannot be missed by consumers."
The complaint alelges violations of California's Unfair Competition Law and Consumers Legal Remedies Act, and breach of express warranty. The plaintiff hopes to represent a multistate class but, in the alternative, seeks a California-only suit.
The plaintiff is represented by James R. Patterson of Patterson Law Group.
The case is Danika Gisvold v. Merck & Co. Inc. et al., case number 3:14-cv-01371, in the U.S. District Court for the Southern District of California.