On Tuesday, Judge Cronan dismissed for the second time plaintiffs’ putative class action alleging that defendant Supergoop’s sunscreen contains a lower SPF than labeled. Both times, the Court found that plaintiffs failed to establish standing by inadequately pleading injury-in-fact.
Rather than pursuing a direct theory of injury based on the products actually purchased, plaintiffs argued a theory of injury “via indirect means by linking the results of their independent testing of the same product line to the Purchased Products.” The named plaintiffs purchased Supergoop sunscreen on four separate occasions throughout 2023 and 2024. However, they did not test the SPF levels of the bottles they bought. Instead, counsel for plaintiffs arranged for the SPF testing of separate bottles of the same type of sunscreen, purchased in a different month in 2023, on the theory that the testing would apply to “all products by the same manufacturer that have the same combination of active ingredients.”
Judge Cronan disagreed, holding that plaintiffs failed to allege a “meaningful link” between the results of testing and a plaintiff’s actual purchases:
The Tested and Purchased Products are meaningfully linked, Plaintiffs argue, because they contain identical active ingredients and, “under FDA [r]egulations, sunscreens with the same active ingredients should perform at the same stated SPF Label Value.” But that reasoning is too speculative to support the inference that Plaintiffs themselves suffered an injury. The most Plaintiffs plausibly allege is that the two bottles of Unseen Sunscreen for body and the three bottles of Unseen Sunscreen for face that their lawyers bought in August 2023—i.e., the Tested Products—were labeled with a higher SPF value than they contained.
Judge Cronan explained that the plaintiffs failed to establish either temporal or geographic proximity between the purchased and tested products. They did not buy the sunscreen products during the period in which systematic mislabeling was plausibly alleged, and the Second Amended Complaint failed to allege any facts at all regarding geographic proximity.
Additionally, plaintiffs tested too few products—just five samples overall that were purchased in a single order—to suggest broad mislabeling. “Any number of defects—at the manufacturing facility, in Supergoop’s storage, in the course of delivery, in counsel’s storage, or at the laboratory—may have changed the character of the Tested Products relative to the Purchased Products and compromised any basis for extrapolating the test results.”
Note that plaintiffs tried to correct this error through their motion to dismiss opposition, contending that they had now tested the actual sunscreen purchased by one of the plaintiffs. However, the Court disregarded this contention because factual allegations may not be amended through briefing, and, because plaintiffs had been on notice of this deficiency for almost two years, denied leave to amend such allegations on the basis of prejudice to Supergoop and undue delay.