ftc

The Federal Trade Commission issued a summary decision against California Naturel, Inc., for falsely advertising its sunscreen product as “all natural” in violation of Sections 5 and 12 of the FTC Act.

In a December 12, 2016 opinion, written by Chairwoman Edith Ramirez, the FTC describes how the company promotes its “all natural” sunscreen on its website as containing “only the purest, most luxurious and effective ingredients found in nature.”

The FTC’s Green Guides do not provide guidance on the term “natural.”  However, the FTC is clear that “marketers must identify all express and implied claims that the advertisement reasonably conveys” and “ensure that all reasonable interpretations of their claims are truthful . . . .”  77 Fed. Reg. 62125 (2012).

It is worthy of note that in November 2015, the FDA issued a request for comments regarding the use of the term “natural” in connection with product labeling. 80 Fed. Reg. 69905 (2015). But no action was publicly announced.

And there has been much discussion at the federal level and in several states about the term “natural light” in both visible transmittance of window glass and light bulbs.

But in this instance, California Naturel admitted that eight percent of its sunscreen formula is in fact dimethicone, (by its own admission triggering the summary decision without a hearing) a synthetic ingredient.

The FTC was not persuaded by the company’s argument that its ingredient list and a disclaimer recently added to the company’s web page cured its misleading advertising, noting that consumers should not have to search for and dig out information that contradicts what an advertisement expressly and prominently conveys. For example, the “all natural” claims were prominent on the webpage, while the disclaimer was added to the bottom of the webpage, was not visible without scrolling down, and was well below the “Add to Cart” button.

Other than adding the disclaimer, California Naturel has not changed the representations challenged in the complaint. The website still claims the Sunscreen SPF 30 is “all natural.” The FTC concluded this “plainly conveys to reasonable consumers that every ingredient in the product is natural” which it is not.

Nor was the FTC persuaded by California Naturel’s argument that the disclaimer it added renders its marketing claims “transparent” (the word of the year, but that has no legal or other import).

The FTC regularly holds that “an advertisement is deceptive if it contains a representation or omission of fact that is likely to mislead a consumer acting reasonably under the circumstances, and that representation or omission is material to a consumer’s purchasing decision.”

The FTC’s final order prohibits California Naturel from misrepresenting the ingredients or composition of its products; whether a product is “all natural” or “100% natural;” the extent to which a product contains any natural or synthetic ingredient or component; or the environmental or health benefits of such a product. It also requires the company have competent and reliable evidence to support any of the claims it makes about any of its products (the FTC’s usual ‘suppression of material’ standard, that all but amounts to prior restraint, violative of the First Amendment).

The company may file a petition for review with a United States Court of Appeals within 60 days.

There’s an old adage “bad facts make bad law” and this extreme case is a poor basis for the FTC’s broader interpretation of what is natural.