Katie Bond is a partner, and Samuel A. Butler is an associate, in the Washington, DC office of Keller and Heckman LLP.

* * *

“The sun contains a ray they label vitamin D / If you like vitamin D, it’s quite alright with me.”
-Mack David

“Wear sunscreen.”
-Mary Schmich

Outside of Camus’s The Stranger, the legend of Icarus, and your odd coronal mass ejection, the sun doesn’t too often play the villain. But as time has passed, we have learned that exposure to the sun’s light not only stimulates vitamin D production but also causes skin cancer. And so we have learned to wear sunscreen. But class action plaintiffs have also alleged that sunscreen can harm coral reefs and, when contaminated with benzene, even cause cancer. More recently, evidence has emerged that benzene in sunscreen, even in trace amounts as low as 0.29 parts per million (that’s 290 parts per billion), can cause real headaches for class action defendants, as well. Specifically, the Ninth Circuit recently reversed the dismissal of a putative false advertising class action alleging that a plaintiff was harmed by trace amounts of benzene she found in her sunscreen. Importantly, the decision poses a significant obstacle to a defendant looking to get out of a class action in its early stages.

Beth Bowen alleges that, between 2017 and 2020, she purchased bottles of SPF 100, 50, and 30 sunscreen. She used most of them to protect her skin but sent part of one bottle of SPF 50 off to a lab to be tested for benzene, as one does. To her surprise, the lab found the bottle to contain 0.29 ppm of benzene. She also alleges that a pharmacy tested a bottle of the SPF 100 and found it to contain 0.1 ppm. Benzene is a basic hydrocarbon, and a carcinogen, and various federal agencies have established limits for its presence in workspace air and drinking water. Based on her test results, Bowen filed suit against a number of companies involved in the production, marketing, distribution, and selling of the sunscreen.

Bowen once amended her complaint on her own initiative, and again after the trial court dismissed her amended complaint. The trial court dismissed her second amended complaint because it determined that she did not face any real health risk—and therefore did not suffer any economic injury—from the trace levels of benzene. In her appeal, Bowen argued that it was premature for the trial court to make such a determination: she alleged that benzene posed health risks at any concentration, and the trial court was required to take her allegations as true until after the case had gone to discovery and a full evidentiary record could be developed. The Ninth Circuit agreed.

In one sense, the appellate decision addresses an interesting question of standing and the appropriate standards for ruling on motions to dismiss involving the substantive facts of a case. In another sense, it is a serious warning to companies facing class actions. It raises the bar significantly for ending such a case before incurring the time and expense associated with discovery and its document production, expert reports and depositions.

All law students learn that a plaintiff must have “standing” to bring a case. In a false advertising class action, the primary standing question is often whether the plaintiff has sufficiently alleged some sort of economic injury—like buying sunscreen she wouldn’t have bought if she had known it contained trace levels of benzene, or paying more for it than she would have had she known its contents. Generally, if a defendant can show that the plaintiff got what she paid for, then she won’t have suffered an economic injury, she won’t have standing to bring the case, and so the case will be dismissed at its initial stages.

That was the conclusion of the Bowen trial court. Looking at impurities guidelines from the International Conference on Harmonization, an FDA news release, and an FDA FAQ, the trial court decided that there were no real health risks associated with sunscreen containing less than 2 ppm of benzene. Because Bowen’s sunscreen tested (well) under this level, she received what she paid for: safe sunscreen.

The problem is that, as all law students also learn, there are significant restrictions on a defendant’s ability to contest the factual allegations of the complaint at the motion to dismiss stage. Ordinarily, a court takes as true all well-pleaded factual allegations in the complaint. One place where a defendant can introduce new facts, however, is in a challenge to the court’s jurisdiction. A defendant sued in a state where it’s never done any business can base a motion to dismiss on this fact. But standing is also a question of jurisdiction, as a court lacks jurisdiction if the plaintiff lacks standing. So what facts can a defendant introduce at the motion-to-dismiss stage to dispute whether a plaintiff suffered an economic injury?

In its decision, the Ninth Circuit announced that, where the issue of standing is “intertwined with an element of the merits” of a claim, any factual contentions introduced by the defendant must be dealt with by the court on the summary judgment standard. The court can consider the defendant’s facts but, if the plaintiff asserts that some evidence supports her position, the court is extremely limited in its ability to adjudicate the factual issue.

In Bowen, the plaintiff pointed to experts asserting the danger of trace levels of benzene in sunscreen, while the defendants pointed to contrary evidence showing that levels under 2 ppm do not pose a risk. The Ninth Circuit held that determining whose evidence was stronger would have to wait until a later stage of the case. (To be sure, parts of the Ninth Circuit’s decision also suggest that it disagreed with the trial court’s conclusion that the defendants’ evidence was stronger.) Because the factual issue cannot be decided at this early stage of the litigation, the plaintiff’s evidence was sufficient support for her allegations that she suffered an economic injury. She therefore has standing, the court has jurisdiction over the case, and the case must continue—presumably to discovery.

The bottom line for potential defendants is that it is now more difficult in the Ninth Circuit to find an early exit from a putative class action based on superior evidence. If a defendant wants to produce evidence to show that a plaintiff did not suffer economic injury in purchasing a product—whether testing, expert reports, or government standards—the court will be prevented from weighing that evidence until the final stages of the case.

As for the FDA? Its FAQ still recommends wearing sunscreen, and simply avoiding products that have been subject to recall.