Consumer challenges Hawaiian Tropic’s ‘Reef Friendly’ sunscreen label in Second Circuit
A buyer says the product's label is misleading because it claims the product is "Reef Friendly" despite including chemicals known to harm coral reefs.
by Nika Schoonover, Court House News, October 25, 2023
MANHATTAN (CN) — Hawaiian Tropic faced a threat Wednesday to its “Reef Friendly” sunscreen in the Second Circuit Court of Appeals, where a consumer argued the brand misled customers by falsely claiming its products are safe for coral reefs.
Sherise Richardson, who bought the sunscreen partly because of the “Reef Friendly” label, says the sunscreen contains chemicals that are harmful to coral reefs and the marine life around them.
On Hawaiian Tropic’s sunscreen products, the label “Reef Friendly” is portrayed in bold letters with an asterisk that directs customers to the back of the label. There, above the “Drug Facts” section, it clarifies: “No Oxybenzone or Octinoxate.”
The product also claims it follows Hawaiian law, which banned the use of oxybenzone and octinoxate in sunscreen products in 2021, because the chemicals have harmful effects on the state’s marine environment and ecosystems, including coral reefs.
“Labeling and marketing of the products as 'Reef Friendly' allow it to gain an unfair advantage against its competitors that lawfully sell competing sunscreens and sun care products,” Richardson’s attorneys wrote in their brief.
In the U.S. District Court for the Southern District of New York, Richardson’s case was dismissed because the court inferred that a “reasonable consumer” would understand that the sunscreen was reef friendly because it did not contain the specific chemicals listed on the back label.
But Richardson says Edgewell Personal Care, which operates the Hawaiian Tropic brand, produces front and back labels that are at odds with each other.
“This product contains four different ingredients that are all reef damaging, and that is directly contradicting the front label statement that it’s reef friendly,” Glenn Danas, Richardson’s attorney, argued Wednesday.
But Edgewell Personal Care's attorneys countered that reasonable consumers would know the asterisk next to “Reef Friendly” would lead them to read the back label, which clarified that the two specific chemicals weren’t used.
Judge Michael Park, a Trump appointee, pushed back against that argument.
“This isn’t a legal document. It’s a picture with a leaf and some numbers and lots of different fonts,” Park said. “I wouldn’t necessarily agree with you that it’s reasonable to see an asterisk and think, ‘Oh, there’s fine print. I need to look further at what that means.’”
Thomas Davis, an attorney representing Edgewell, said that if you notice the “Reef Friendly” label then your attention is immediately called to the asterisk.
But Judge Gerard Lynch, an Obama appointee, said the back label is still not clear.
“And what you find is not something that says, ‘Disclaimer: All we mean by this is that we do not have these two chemicals,’” Lynch said. “It just says, 'does not contain these two chemicals.'"
Lynch then added that he wasn't sure what the two chemicals were, and he would not know if they were, in fact, harmful to coral reefs.
“Isn’t it a perfectly plausible thing to think that the average consumer would not read 'reef friendly,' even with a disclaimer, to mean anything other than it doesn’t have the stuff that hurts reefs?” Lynch said.
In response, Davis said the asterisk draws you to a “true statement,” saying the claim “Reef Friendly” is true because it follows Hawaiian law.
“These ingredients have been removed and that, in fact, is what happened after the Hawaiian legislation occurred,” Davis said.
In rebuttal, Danas said that the idea that “Reef Friendly” can simply mean that the product does not contain these two ingredients would be to encourage “highly deceptive advertising.”
Park and Lynch were joined by Judge Jessica Clarke, a Biden appointee. The panel adjourned without a ruling.