Skin cancer is the most common of all cancers, accounting for almost half of all annual cancer diagnoses in the United States. As the American Cancer Society explains, more than 3.5 million cases of basal and squamous cell skin cancer are diagnosed each year in this country. And melanoma, the most serious type of skin cancer, will account for more than 76,000 cases of skin cancer in 2014. This year, several class action complaints have targeted sunscreen companies for consumer fraud or deceptive practices. E.g., Lombardo v. Johnson & Johnson Consumer Companies, Inc. et al. (S.D. Fla. 2014); Dapeer v. Neutrogena Corp. (S.D. Fla. 2014); Gisvold v. Merck & Co., Inc. et al. (S.D. Cal. 2014). Those cases involve consumers who’ve purchased sunscreen products and claim overcharges.
According to the plaintiffs’ complaints, the U.S. Food and Drug Administration has only recently concluded that higher SPF values don’t necessarily provide increased benefit. Companies have included SPF ratings — as well as terms like “sweatproof” or “waterproof” — on sunscreen products for about 30 years.
As the Southern District of Florida explained last month, SPF ratings are determined by a test that compares the amount of ultraviolet radiation exposure it takes to cause sunburn when wearing the sunscreen, to the amount of exposure it takes to cause sunburn without the sunscreen. Although sunscreens with higher SPF values filter out more ultraviolet rays than those with lower SPF values, after a certain point, the scale of clinical benefit provided by higher SPF values is not directly proportional. The court also held that the terms, like “sunblock,” “waterproof,” “sweatproof,” or “continuous” sun protection, were not expressly preempted.
Is there possible tort liability resulting from people who use sunscreen but later develop skin cancer? Skin cancers develop after a long latency periods averaging 20 to 40 years. With millions of skin cancers developed each year, and the number of serious melanoma cases increasing for at least 30 years, we may be seeing a budding mass tort.