Plaintiffs Say Benzene-Tainted Banana Boat Sunscreens Are Deceptive, Adulterated And Thus ‘Worthless’
Executive Summary
Putative class actions against sunscreen product manufacturers for alleged violations of federal and state laws due to benzene contamination can be traced to testing reported in May by independent quality assurance firm Valisure, which bills itself as “the pharmacy that checks.”
Edgewell Personal Care LLC faces proposed class actions in at least three federal courts after findings of benzene in its Banana Boat sunscreen products earlier this year.
The latest suit, filed on 4 August in New York’s Eastern District, alleges that “Plaintiff and Class Members lost the entire benefit of their bargain when what they received was a sunscreen product contaminated with a known carcinogen.”
Plaintiff Luis Chabla adds, “That is because Defendant's Products containing a known human carcinogen have no value.”
Those “worthless” products include Banana Boat Kids Max Protect & Play Sunscreen C-Spray SPF 100, Banana Boat Protective Dry Oil Clear Sunscreen Spray with Coconut Oil SPF 15, and other aerosol sunscreen offerings from the brand.
“Defendants wrongfully advertised and sold the Sunscreen Products without any labeling to indicate to consumers that these products may contain benzene.”
In May, Valisure LLC, “the pharmacy that checks,” identified all of the Banana Boat products as containing benzene at average levels ranging from <0.1 ppm to 0.43 ppm, based on testing it commissioned from independent labs. (Also see "Valisure’s Benzene Testing Finds Problems With OTC Sunscreens, Cosmetic Sun Care Products" - HBW Insight, 26 May, 2021.)
Chabla alleges violation of New York’s General Business Law, breach of warranty, fraudulent concealment and unjust enrichment, among other claims, seeking certification of national and New York consumer classes, injunctive relief, various damages, attorneys’ fees and costs.
Further, the plaintiff requests “an Order requiring Defendants to establish a blood testing program for Plaintiff and the Class, as well as to establish a medical monitoring protocol for Plaintiff and the Class to monitor individuals’ health and diagnose at an early stage any ailments associated with exposure to benzene.”
Similar class action complaints have been filed against Edgewell and subsidiaries in Florida and Connecticut federal courts.
The suits outline various theories of misconduct, including that the omission of any reference to benzene on its Banana Boat sunscreen labeling constitutes deception and renders the products misbranded.
Chabla states, “Defendants’ advertising and marketing campaign is false, deceptive, and misleading because the Products contain benzene, which Defendant does not list or mention anywhere on the Products’ packaging or labeling.”
Similarly, Maria Zapatero alleges in Florida’s Southern District that “Defendants wrongfully advertised and sold the Sunscreen Products without any labeling to indicate to consumers that these products may contain benzene.”
In their suit filed on 28 July in the US District Court for the District of Connecticut, plaintiffs Bryan Clinger, Monica Barba and Heather Rudy allege that benzene’s presence in Banana Boat sunscreens makes them adulterated and thus unlawfully marketed under the Federal Food, Drug and Cosmetic Act and corresponding state laws.
They point to US Food and Drug Administration guidance on residual solvents that identifies benzene as a Class 1 solvent that should not be used in drug manufacturing due to its carcinogenic potential.
According to the agency, benzene content should be limited to 2 parts per million in instances where its use “is unavoidable in order to produce a drug product with a significant therapeutic advance.”
The plaintiffs state, “Because the majority of products [Valisure] tested did not contain detectable levels of benzene, its use is not ‘unavoidable’ in order to achieve the therapeutic benefits of sunscreen.”
Johnson & Johnson’s Neutrogena also is battling litigation concerning benzene detected in its sunscreen spray products, as reported by Valisure. (Also see "Neutrogena Defending Class Action After Findings Of Benzene In SPF Products" - HBW Insight, 3 Jul, 2021.)
Craig Weiss, co-CEO and president of Fairfield, NJ-based Consumer Product Testing Company, told HBW Insight in June that benzene in sunscreen products is one of two major “hot buttons” in product testing currently, the other being perfluoroalkyl and polyfluoroalkyl substances (PFAS) in cosmetics. (Also see "Two ‘Hot Buttons’ Right Now In Product Testing: Benzene In Sunscreens, PFAS In Cosmetics" - HBW Insight, 23 Jun, 2021.)