Sidley successfully obtained a dismissal on behalf of Bayer Healthcare Pharmaceuticals Inc., Bayer Healthcare LLC, Beiersdorf, Inc., and Beiersdorf North America, Inc. in a putative class action filed in the United States District Court for the Southern District of New York on behalf of a nationwide class of purchasers of Coppertone Water Babies (SPF 50) sunscreen. Plaintiffs allege that the product is deceptively marketed as hypoallergenic and free of oxybenzone because it contains an alleged contaminant, benzophenone, which results from degradation of an FDA-approved active ingredient, octocrylene. Plaintiffs argue that the defendants should have both changed their product labeling to warn of the risk of degradation and altered their manufacturing processes to remove the FDA-approved ingredient from the product’s formulation.
On November 15, 2022, Judge Vincent Briccetti in the Southern District of New York granted Sidley’s motion to dismiss in full and ordered that the case be closed. The judge held that “Plaintiffs’ claims are expressly preempted by FDCA labeling requirements for sunscreen, to the extent they result from the Product label’s omission of benzophenone.” The opinion recognized that FDA allows sunscreens to be formulated with the active ingredient “octocrylene up to 10 percent, and does not require disclosure that octocrylene may degrade into benzophenone.” Judge Briccetti also agreed that Plaintiffs’ claims must be dismissed to the extent they arise from “free of oxybenzone” and “hypoallergenic” labeling. The opinion reads, “[e]ven if plaintiffs’ claims were not preempted by the FDCA, defendants argue plaintiffs fail to state a claim based on these statements because the presence of benzophenone is irrelevant to the Product’s free of oxybenzone labeling and plaintiffs fail plausibly to allege benzophenone is an allergen. The Court agrees.”
The Sidley team was led by partners Beth Chiarello and Bob Scarborough (both in Chicago) and included partner Eamon Joyce (New York) as well as senior managing associate Caitlin Maly (Chicago), managing associate Julie Becker (Chicago), and associates Matt Binder and Bridget Murphy (both in Chicago). Lisa Modaff and Anthony Leon (both in Chicago) provided paralegal support.
On November 15, 2022, Judge Vincent Briccetti in the Southern District of New York granted Sidley’s motion to dismiss in full and ordered that the case be closed. The judge held that “Plaintiffs’ claims are expressly preempted by FDCA labeling requirements for sunscreen, to the extent they result from the Product label’s omission of benzophenone.” The opinion recognized that FDA allows sunscreens to be formulated with the active ingredient “octocrylene up to 10 percent, and does not require disclosure that octocrylene may degrade into benzophenone.” Judge Briccetti also agreed that Plaintiffs’ claims must be dismissed to the extent they arise from “free of oxybenzone” and “hypoallergenic” labeling. The opinion reads, “[e]ven if plaintiffs’ claims were not preempted by the FDCA, defendants argue plaintiffs fail to state a claim based on these statements because the presence of benzophenone is irrelevant to the Product’s free of oxybenzone labeling and plaintiffs fail plausibly to allege benzophenone is an allergen. The Court agrees.”
The Sidley team was led by partners Beth Chiarello and Bob Scarborough (both in Chicago) and included partner Eamon Joyce (New York) as well as senior managing associate Caitlin Maly (Chicago), managing associate Julie Becker (Chicago), and associates Matt Binder and Bridget Murphy (both in Chicago). Lisa Modaff and Anthony Leon (both in Chicago) provided paralegal support.
