Second Circuit on Reef Friendly Sunscreens

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Second Circuit Reverses Dismissal of “Reef Friendly” Claims

by: Food and Drug Law at Keller and Heckman of Keller and Heckman LLP - The Daily Intake

Monday, November 6, 2023

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Companies making “friendly” claims have found few friends in the past couple of years, and have just lost another one: the Second Circuit reversed a lower court’s dismissal of a class action directed at sunscreens advertised as “Reef Friendly.” Labels disclosed that the sunscreens were “Hawaii Compliant” by containing “No Oxybenzone or Octinoxate,” two chemicals banned by Hawaii. The plaintiff alleged, and the Second Circuit agreed, that despite the disclosure and ingredient lists “Reef Friendly” claim could still convey absence of any chemicals that might harm coral reefs. The Second Circuit observed that consumers should not have to possess encyclopedic knowledge of which chemicals may or may not be harmful to coral reefs.
The current Federal Trade Commission Green Guides provide that “friendly” claims can avoid being deceptive with appropriate qualifications, e.g., “eco-friendly: made with recycled materials.” 16 CFR § 260.4 Ex. 1. At the same time, the Green Guides caution that these sorts of qualified claims require an advertiser to substantiate that the product is “more environmentally beneficial overall” if that is implied by the specific environmental benefit advertised. 16 CFR § 260.4(c).
The National Advertising Division has consistently held that “friendly” claims like “eco-friendly” or “environmentally friendly” convey broad environmental benefit claims—for products as diverse as a chewing gum and a drain clog remover, regardless of qualifications.
As is often the case in the advertising space, federal court decisions have been less consistent in determining how far the “friend zone” extends. In a case where the company advertised its degreaser as “Earth friendly” given the absence of certain specified chemicals, the court refused to dismiss, and litigation continues. On the other hand, a court granted a motion to dismiss where “Earth friendly” claims were accompanied by carbon footprint calculations. A third court rejected a plaintiff’s attempt to interpret “sustainable” claims to mean “environmentally friendly,” noting that it was the plaintiff, rather than the defendant’s advertising, that introduced all the “friendliness” into the litigation. Many other examples could be added, but advertisers would be well advised to keep their friends close and their advertising claims closer.