November 11, 2021
A new false advertising case against the maker of Alba Botanica sunscreen demonstrates the risks of marketing a company’s environmental credentials. In a recent article, “The Difficult Art of Advertising Carbon Reductions,” Linda Goldstein and Randal Shaheen of BakerHostetler discussed the potential application of Section 5(a) of the FTC Act’s prohibition on “unfair or deceptive acts or practices” against companies that claim to offer green products or advertise their carbon reductions. The Alba Botanica case shows how consumers can bring claims under similar state statutes and offers more reason for companies to ensure that their environmental claims are adequately substantiated or qualified.
In her Complaint filed October 20, 2021, in the Southern District of California (Case No. 3:21-cv-01794), Heidi Anderberg, on behalf of herself and a proposed class, alleges that Hain Celestial Group violated California law by falsely advertising its Alba Botanica sunscreen as “reef-friendly,” when in fact the sunscreen contains chemicals that can allegedly damage coral reefs and other marine life (and have been banned in parts of the U.S. for that reason). She contends that she and other consumers paid more for Alba products over cheaper alternatives because they believed them to be safe for the environment.
Anderberg brings five causes of action under the California Business & Professional Code and Commercial Code for false advertising and breach of warranty, including claims under the Unfair Competition Law (“UCL”) (§§ 17200, et seq.), the Consumer Legal Remedies Act (“CLRA”) (§§ 1750, et seq.), and the False Advertising Law (“FAL”) (§§ 175000, et seq. and 17535). The UCL defines unfair competition as “unlawful, unfair or fraudulent business practices.” The CLRA prohibits sellers from “representing that goods have…characteristics, ingredients…benefits or quantities which they do not have,” “representing that goods or services are of a particular standard, quality, or grade…,” and “advertising goods or services with intent not to sell them as advertised.” The FAL prohibits advertising “which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.”
Among other allegations, Anderberg claims that Hain made material misrepresentations and omissions in advertising Alba Botanica as “reef-friendly” and that it knew or should have known that its labelling and marketing would be likely to deceive a reasonable consumer. Ironically the Complaint also notes that the products are labeled with the term Hawaiian even though the chemicals they contain are “banned on the Hawaii beaches.” The Complaint seeks injunctive and declaratory relief, restitution and disgorgement, and punitive damages.