Akes v. Beiersdorf, Inc., 2023 WL 5000434, No. 3:22-cv-869
(JBA) (D. Conn. Aug. 4, 2023)

Akes brought the usual
California claims/unjust enrichment, alleging that she was misled by the
labeling of the 2.5-ounce bottle of Coppertone Sport Mineral sunscreen as “Face
50” to believe that it was “specifically designed” or “specifically formulated”
“for use on the face.”

The label included: “FACE,” “Won’t Run Into Eyes,” and
“Oil Free,” the latter two of which were allegedly “face-specific
representations.” However, the sunscreen is allegedly identical to the sunscreen
in the larger 5-ounce bottle, which costs half as much per ounce. Coppertone
argued that the higher price couldn’t be deceptive and that “[t]here is nothing
deceptive about emphasizing different but equally true aspects of a product to
different market segments, or pricing products differently when sold to
different market segments or in different retail channels.”

The court found it was plausible that the label implied that
it was specifically designed/formulated for the face, not just suitable for the
face—that’s a factual issue. “While labeling products ‘vanilla’ or ‘diet’ was
found insufficiently specific to convey the particular representations that the
plaintiffs in those cases asserted, here the use of the word ‘FACE’ on a lotion
bottle is plausibly understood by consumers to differentiate between the
intended applications of sunscreen—face or body.” Although the mere fact of
different prices doesn’t violate consumer protection laws, it could contribute
to deceptiveness: the price disparity plausibly reinforced the deception that
the “FACE”-labeled product “contained more expensive but specifically
formulated facial sunscreen.”

from Blogger http://tushnet.blogspot.com/2023/08/face-sunscreen-2x-as-expensive-as.html