The Second Circuit recently revived a putative class action asserting false advertising and breach-of-warranty claims over “Reef Friendly*” sunscreen, providing another cautionary tale of how claims involving potentially ambiguous marketing language can survive a motion to dismiss even when clarifying language appears elsewhere on the product package.

In Richardson v. Edgewell, plaintiff challenged the labeling of sunscreen products with “Reef Friendly*” on the front and the clarification “*No Oxybenzone or Octinoxate” or “*Hawaii Compliant: No Oxybenzone or Octinoxate” on the back.  According to the complaint, this labeling was deceptive under the New York General Business Law because the products contained other reef-harming ingredients, and that the inclusion of those ingredients also breached an express warranty formed by the words “Reef Friendly*.”

The district court dismissed the case, finding that the words “Reef Friendly*,” standing alone, were too vague and ambiguous to sustain a claim, and when viewed together with the clarifying language on the back label, the representation was not misleading.  In a non-precedential opinion, the Second Circuit reached a different conclusion, holding that the challenged labels could mislead a reasonable consumer into thinking the products contained no reef-harming ingredients.  Moreover, the opinion explained, the ingredient list would not provide clarification in this case because a reasonable consumer could not be expected to know the “universe of chemicals” harmful to coral reefs such that they could determine whether a sunscreen product was in fact “Reef Friendly.”

This case is one of several challenging similar sunscreen claims.  The Second Circuit’s opinion is yet another example of how vague marketing slogans, even coupled with clarifying language elsewhere on the label, may be deemed deceptive and capable of surviving a motion to dismiss.  This developing case law may also shed light on when courts might deem ingredient lists (or other sources of information) too far beyond the ken of a reasonable consumer to cure an allegedly deceptive representation.

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Photo of Andrew Soukup Andrew Soukup

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for “big wins in his class action practice,” Andrew has defeated advertising, consumer…

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for “big wins in his class action practice,” Andrew has defeated advertising, consumer protection, privacy, and product defect and safety claims with exposure ranging from millions to billions of dollars. His “proven record” has earned Andrew recognition as an “attorney you want on your side in a bet-the-company case.” Clients trust Andrew with their most important matters—whether he is leading a defense from the first filing or stepping in midstream with a fresh perspective.

Andrew represents clients in the consumer products, life sciences, financial services, technology, transportation, gaming, and media and communications industries. He has consistently prevailed in litigation in federal and state courts across the country against putative class representatives, government agencies, state attorneys general, and commercial entities.

Drawing on a long history of representing companies subject to extensive federal regulation and oversight, Andrew has a unique ability to help courts understand the complex environment that governs his clients’ businesses. He has earned praise for “understanding the big picture, the strategic vision of the individual case, and how that fits into the broader business strategy of the client.” Clients trust Andrew because of his successful outcomes at every stage of litigation, his responsiveness and attention to their matters, and his deep understanding of their businesses.

Andrew’s recent successes include:

Successfully defending several of the world’s leading companies and brands against class actions accusing them of engaging in deceptive marketing or selling defective products, including claims under state consumer protection and unfair and deceptive acts or practices statutes.
Defeating class certification in a privacy class action against one of the nation’s leading financial institutions.
Defeating industry-wide, multidistrict class-action claims against one of the nation’s leading consumer products companies challenging its marketing of over-the-counter medicine containing allegedly ineffective ingredients—a win that earned Andrew recognition by American Lawyer as a “Litigator of the Week.”
Delivering wins in multiple nationwide class actions for leading financial institutions over fees, disclosures, and other banking practices—including defending several institutions accused of violating the Paycheck Protection Program’s implementing laws, work that contributed to Covington’s recognition as a “Class Action Group of the Year.”
Representing multiple consumer product and life sciences companies against lawsuits seeking economic damages from the sale of products that allegedly caused personal injuries.
Defending several of the world’s most prominent companies against ESG-related claims accusing them of misrepresenting their practices.

Andrew has also achieved favorable outcomes navigating commercial and indemnification disputes between clients and their business partners involving contracts, fraud, and other business torts. He advises on arbitration agreements, has helped numerous clients avoid multidistrict and class-action litigation by enforcing them, and guides companies through mass arbitrations.

A recognized thought leader on class-action issues, Andrew regularly contributes to the firm’s blog, Inside Class Actions. He has been named a Lawyer of the Week by The American Lawyer, included on the Daily Journal’s list of Leading Commercial Litigators (2025), and ranked as a leading litigator by Chambers USA.

Watch: Andrew shares insights on class action litigation, as part of our Navigating Class Actions video series.

 

Photo of Kanu Song Kanu Song

Kanu Song is a litigator who represents clients in the technology and life sciences industries. Her practice focuses on high-stakes commercial disputes, including matters involving trade secrets and unfair competition, copyright and trademark litigation, privacy and data security class actions, and actions brought…

Kanu Song is a litigator who represents clients in the technology and life sciences industries. Her practice focuses on high-stakes commercial disputes, including matters involving trade secrets and unfair competition, copyright and trademark litigation, privacy and data security class actions, and actions brought under consumer protection laws. Kanu has experience with all stages of litigation, as well as arbitration, with a strong track record of success on dispositive motions. Her approach focuses on delivering efficient, decisive results tailored to the client’s business objectives at each step, from defusing pre-suit demands and navigating complex discovery to defending summary judgment and class certification wins on appeal.

Kanu also maintains an active pro bono practice focused on serving women and children, as well as assisting nonprofits and community-oriented small businesses with intellectual property and data privacy issues.