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Lombardo v. Johnson & Johnson Consumer Cos.

United States District Court for the Southern District of Florida

August 12, 2015, Decided; August 13, 2015, Filed

Civil Action No. 13-60536-Civ-Scola

Opinion

 [*1284]  Order on Defendants' Motion for Summary Judgment

THIS MATTER is before the Court on Defendants' Motion for Summary Judgment. (ECF No. 83.) Plaintiff responded in opposition, (ECF No. 102), and Defendants replied. (ECF No. 110.) After reviewing the record, the parties' arguments, and the relevant legal authorities, the Court grants Defendants' Motion for Summary Judgment.

1. Factual and Procedural Background

This case [**2]  concerns the advertising and labeling of sunscreen products with sun protection factor ("SPF") designations greater than 50, manufactured by Defendants Johnson & Johnson Consumer Companies, Inc. ("Johnson & Johnson") and Neutrogena Corporation ("Neutrogena"). Johnson & Johnson distributes, markets,  [*1285]  and sells Aveeno Active Naturals Continuous Protection Waterproof Sunblock Lotion SPF 70 and SPF 85 (the "Aveeno Sunscreens") and Neutrogena distributes, markets, and sells Ultra Sheer Dry-Touch Waterproof Sunblock SPF 55 and SPF 85, Pure & Free Baby Waterproof Sunblock Lotion SPF 60+, and Sensitive Skin Waterproof Sunblock Lotion SPF 60+ (the "Neutrogena Sunscreens") (collectively, the "Products").

Plaintiff Vanessa Lombardo alleges that Defendants advertised that their Products provided additional clinical benefit over comparable products with SPF designations less than 50, and charged premium prices accordingly, even though higher SPF sunscreens do not provide any meaningful additional benefit. In other words, while there is a significant clinical benefit from switching from SPF 10 to SPF 40, there is allegedly little to no additional clinical benefit from switching from SPF 55 to SPF [**3]  85. Lombardo claims that as a result of Defendants' deceptive labeling, she and members of the putative Florida class purchased the Products at premium prices and that the Products did not perform as advertised. Lombardo further alleges that the labeling terms "waterproof" and "sunblock" on all of the Products, the term "continuous" protection" on Aveeno Sunscreens, and the term "sweatproof protection" on the Neutrogena Sunscreens were false and misleading.1

Lombardo purchased each of the six Products that form the basis [**4]  of her lawsuit during a single trip to a Walmart in Fort Meyers, Florida. (Statement of Undisputed Facts ("SUF") ¶ 30.)2 Although Lombardo does not recall the exact date she purchased the Products, she testified that she purchased them immediately prior to a boating trip in the spring of 2012, within the year prior to filing her initial Complaint in January of 2013. (Id. ¶¶ 31-36.) Lombardo does not recall the prices she paid for any of the Products, whether the Products were comparably priced to one another, or how the Products' prices compared to any other lower SPF sunscreens available at that Walmart. (Id. ¶¶ 63-66.) Lombardo does not have any receipts for the Products' purchase. (Id. ¶ 67.) Lombardo did not purchase any of the Products prior to her purchase for the boating trip, nor did she purchase any Neutrogena or Aveeno Sunscreens after the boat trip purchase. (Id. ¶¶ 37, 44.)

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124 F. Supp. 3d 1283 *; 2015 U.S. Dist. LEXIS 114982 **; 25 Fla. L. Weekly Fed. D 252

Vanessa Lombardo, Plaintiff v. Johnson & Johnson Consumer Companies, Inc., et al., Defendants

Prior History: Lombardo v. Johnson & Johnson Consumer Cos., 2013 U.S. Dist. LEXIS 189043 (S.D. Fla., Dec. 19, 2013)

CORE TERMS

Products, labels, sunscreen, consumers, prices, deceptive, final rule, waterproof, sunblock, preempted, causation, unfair, summary judgment, clinical, mislead, genuine issue, material fact, sweatproof, premium, actual damage, retail price, challenging, undisputed, practices, retailers, Testing, ranges, trip