Hunton Retail Law Resource

On December 12, 2016, the Federal Trade Commission announced a summary decision against California Naturel, Inc., holding that advertising sunscreen as “all natural” violates Sections 5 and 12 of the FTC Act because 8 percent of the product is comprised of the synthetic ingredient dimethicone. 

According to the complaint, California Naturel advertises its Sunscreen SPF 30 product as “all natural” and says it “uses only the purest, most luxurious and effective ingredients found in nature.” In its response to the FTC, the company did not dispute that one of the ingredients is the synthetic polymer dimethicone.

Earlier this year, the FTC announced actions against five different companies making false claims regarding “all natural” sunscreens containing dimethicone. At that time, four of the companies – Trans-India Products, Erickson Marketing Group, ABS Consumer Products and Beyond Coastal – agreed to stop misrepresenting the extent to which their products were natural. Litigation went forward against California Naturel, which relayed in its answer to the FTC that it had added a disclaimer online and on product packaging acknowledging the presence of  dimethicone in its sunscreen formula.

The FTC staff moved for a summary decision, which is akin to a summary judgment in federal court. In an opinion written by Chairwoman Edith Ramirez, the FTC found that California Naturel consistently and expressly claimed that its sunscreen was “all natural,” and that its later-added disclaimer was ineffective to cure this impression. In a partial dissent, Commissioner Ohlhausen concurred with the majority’s determination that California Naturel expressly violated the FTC Act, but found that issues relating to the subsequent disclosures should not have been resolved in a summary decision.

Under the terms of the FTC’s order, California Naturel may only make representations regarding the ingredient composition of any product it sells if it can substantiate those representations. Once finalized, the FTC’s order will be effective for 20 years and will be enforceable by the U.S. Department of Justice in federal court.