Richardson v. Edgewell Personal Care, LLC

Background

Sherise Richardson brought a proposed class action against Edgewell Personal Care, LLC, concerning Hawaiian Tropic sunscreen products. She alleged that the products’ “Reef Friendly*” labeling was false and misleading because the products contained ingredients that could harm or kill coral reefs and related marine life. Richardson asserted claims under New York General Business Law §§ 349 and 350, which address deceptive business practices and false advertising, and a claim for breach of express warranty. She had withdrawn an implied-warranty claim before filing the amended complaint.

Richardson alleged that she purchased Hawaiian Tropic Silk Hydration Weightless SPF 30 for $8.92 at a Walmart in Middletown, New York, in July 2021. She read “Reef Friendly” on the front label and believed the ingredients were reef-friendly, but alleged that she did not notice the asterisk or read the back label. The asterisk directed consumers to clarifying language stating “No Oxybenzone or Octinoxate.” Some of the other products covered by the complaint used the wording “*Hawaii Compliant: No Oxybenzone or Octinoxate.”

Edgewell moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which allows dismissal when a federal court lacks subject-matter jurisdiction, and Rule 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim.

Standing

The court rejected Edgewell’s argument that Richardson lacked constitutional standing because she did not allege that she used, or intended to use, the sunscreen near an actual coral reef. The court held that an allegation that a consumer would not have bought a product, or would not have paid the same price, adequately alleged an injury for purposes of standing.

The court also held that Richardson sufficiently alleged standing to assert claims involving 19 products she did not allege purchasing. The products all carried the “Reef Friendly*” representation, and Richardson alleged that they were substantially similar to the product she purchased. The court treated Edgewell’s separate “statutory standing” argument as a question about whether Richardson had adequately stated claims under the New York statutes, rather than as a jurisdictional issue.

New York Consumer-Protection Claims

The court held that Richardson adequately alleged an injury under New York General Business Law §§ 349 and 350 through a price-premium theory. She alleged that Edgewell used environmental and “eco-friendly” claims to charge consumers more for reef-friendly products. The court found those allegations sufficient at the pleading stage.

The court nevertheless dismissed the consumer-protection claims because the “Reef Friendly” representation was not materially misleading when the label was considered as a whole. The court viewed “Reef Friendly” as ambiguous because it could refer either to the absence of all ingredients harmful to coral reefs or to the absence of particular ingredients commonly found in competing sunscreens. The visible asterisk directed consumers to the back-label clarification, and the court held that a reasonable consumer would understand the representation, together with that clarification, to mean that the products did not contain oxybenzone or octinoxate. The court reached the same conclusion for products stating that they were Hawaii-compliant because they contained neither ingredient.

Express-Warranty Claim

The court rejected Edgewell’s argument that Richardson’s pre-suit notice was untimely. Richardson alleged that she bought the product in July 2021 and that her counsel sent notice on or about October 4, 2021. The court held that a three-month delay was not unreasonable as a matter of law.

The court nonetheless dismissed the express-warranty claim. It held that “Reef Friendly*,” standing alone, was too vague and generalized to constitute an express warranty. When read with the back-label language, the statement created a warranty that the products did not contain oxybenzone or octinoxate. Because Richardson did not allege that the products contained either ingredient, she did not allege a breach of that warranty.

Disposition

The court granted Edgewell’s motion to dismiss the First Amended Complaint with prejudice. It directed the Clerk of Court to terminate the pending motion and close the case. The court did not reach Edgewell’s argument that the claims were barred by the primary-jurisdiction doctrine.