LOS ANGELES — A federal court has granted CVS Pharmacy's motion to dismiss a class-action complaint over its sunscreen.
On Feb. 15, Judge Otis D. Wright II of the U.S. District Court for the Central District of California granted a motion to dismiss a First Amendment complaint filed by CVS customer Alexander Forouzesh over what he claimed was misleading information on a CVS-branded sunscreen product.
However, Judge Wright allowed Forouzesh to amend his complaint within 21 days of the order, “only as to the FDA-compliant SPF testing of the product he purchased,” adding that “should Forouzesh not file an amended complaint within 21 days, this dismissal will convert to one with prejudice.”
Forouzesh filed his initial class-action complaint claiming that the CVS brand sunscreen’s “SPF 100+” designation was "false and misleading."
Forouzesh asked the courts for not only damages but also an order that “CVS relabel all its CVS Sport SPF 100+ sunscreen products as SPF 29 per his independent testing and conduct a corrective advertising campaign to inform consumers of its deceptive labeling.”
Forouzesh claimed he purchased a bottle of the CVS Sport SPF 100+ Sunscreen Spray sometime in November 2016 “on the assumption that [it] contained the advertised SPF level of protection.”
However, based on an independent study “using FDA-complaint testing protocols” he concluded the product did not contain the advertised level of protection.
Judge Wright said Forouzesh failed to show that “his testing was done in compliance with FDA regulations.”
Furthermore, "he fails to allege the product tested is one he purchased. He fails to identify the specific product tested. And he fails to provide any factual support as to how his testing complied with FDA regulations. As just one example, Forouzesh alleges the product he purchased is a ‘Sunscreen Spray.’ Yet he does not explain how the spray was applied according to FDA requirements,’” Judge Wright said.