(interview) Big Lots Faces Lawsuit Over ‘Reef Conscious’ Sunscreen Allegedly Harmful to Reefs

Ambiguous claims regarding cosmetic products appear to be a growing problem as U.S. regulations continue to allow companies to label their products with these claims. One example of this ambiguity is the Big Lots sunscreen label.

The company is currently facing a class action lawsuit over its Sound Body sunscreen, which contains ingredients that allegedly harm coral reefs — despite the products being advertised as “reef friendly.”

As of July 2021, the quarterly growth of Big Lots has been on a downward trend, in line with macro trends. Additionally, the company reported a loss of 28 cents per share for the fourth quarter of 2023, according to Yahoo Finance.

The case is handled by Spencer Sheehan, an attorney at Sheehan & Associates. Sheehan examines how misleading consumers is a perennial problem and shares how these claims are dangerous to shoppers.

Related: Are Reef’s safety claims a marketing stunt? Big Many Sunscreen Lawsuit, Hawaii Ingredient Bans, TikTok Misinformation

C&T: Does using claims on products without specific definitions mislead consumers?

Sheehan: The FTC – the government agency charged with ensuring society has a fair market – has repeatedly said over the roughly hundred years of its existence that companies should not make claims for which they do not have actual backing. This is unfortunately an issue that continues to be an issue, not only for cosmetics and personal care products, but also for a variety of products and services sold to consumers.

C&T: Where does this problem come from?

Sheehan: The problem is as old as humanity itself, which is trying to make money and trying to make more money from consumers to benefit their pockets while at the same time putting more money into the pockets of large corporations. It doesn’t all have to be for bad reasons, sometimes there may be good reasons why a company might use a particular product or service claim, but for the most part it’s because companies know that what they say about their products and services matters to consumers because if it didn’t matter, they wouldn’t spend hundreds of billions of dollars on advertising to convince the public that their product was better than the competition.

C&T: Explain the Big Many thing.

Sheehan: I think the natural interpretation of the term (reef awareness) by consumers is that not only will sunscreen not be harmful to reefs, but it will actually be helpful or in some other way positive – will have positive effects. We are becoming increasingly aware or we see every day the environmental damage that is being done to society. Much of it is coming from consumer products. Whether it’s single-use plastics, which we’re dealing with a global crisis. We don’t have to look very far to see the effects of whether it’s pollution, whether it’s the health damage that’s being caused by microplastics in so much of our food and drink and even in our water supplies, which is causing pollution and impacts on our natural environment, especially the incredibly valuable and critical reef ecosystems where so much of the planet’s marine diversity is.

C&T: What are the dangers of using statements like “reef conscious” and “reef safe”?

Sheehan: Danger — the direct harm is that consumers are misled into buying something that is not what the company claims, but the more significant and obvious harm is that such products actually are harmful to reef ecosystems, are not safe for reefs, and most importantly, it leads the public to think that what they offer is actually helpful and preserves these amazing ecosystems, rather than taking actions that may actually be helpful, such as using sunscreen, which some argue is based on on minerals that are not chemical.

By telling people that sunscreen is reef-friendly, reef-safe, and reef-conscious, you are telling people that they don’t have to look for alternatives to what they are doing. These are the alternatives — these important changes — which, as you know, we really need to make the kinds of environmental choices and decisions that will not only stabilize and limit the damage that we do to our environment on a daily basis, but also reverse it and allow these ecosystems to breathe in peace so that they can recover , flourish and support our society for hundreds and thousands of years into the future.

C&T: How do U.S. laws protect consumers from company products with ambiguous claims?

Sheehan: Unfortunately, there is very little regulation of the many types of claims companies use on their products. There are regulations governing certain things, such as the SPF number or whether the sunscreen needs to be reapplied multiple times to reveal what active ingredients are in the sunscreen. These are things that require disclosure by law, but this type of information is often not the most important to the public.

The most important thing is what the public can understand, and in that context, the lack of any regulation of so much of what is used to sell consumer products is not regulated, which gives companies the opportunity to step in and really push the boundaries of what is acceptable. Very rarely will a federal agency or state agency do this — whether in the form of the attorney general or the Food and Drug Administration — very rarely will they step in and stop these activities. So the market remains uncontrolled and I don’t want to brag, but that is the role of lawyers who act on behalf of consumers and society to impose a level of honesty, transparency and honesty in what companies tell the public about what they are buying.

C&T: Do you think American regulations are outdated?

Sheehan: Yes, they are outdated and I think there definitely needs to be a renewed focus on making sure that businesses are being truthful and, as much as possible, on any regulations that are put in place and any laws that are passed. Unfortunately, this is a constant situation – it is a treadmill of having to keep up with the latest science and the latest trends, because although regulations will help to some extent, there will always be something new, something that the regulations do not touch and that is to find out which companies spend billions of dollars a year and that’s why they’re ahead of the government. When it comes to the next big thing, government will always be a little behind private industry.

We can regulate things that have happened and may happen, but as far as the future is concerned, it’s an ongoing challenge and that’s why we rely on companies to do the right thing, and for the most part (they) do, I will say that other countries not only have more robust government regulation like Canada and European Union countries, but I also think there is a greater sense of self-regulation because companies operating in these countries know that if they get out of line, if they go too far, the relevant enforcement agencies will turn on them and will be quite direct in setting any sanctions they deem appropriate to protect their society.

Editor’s note: As of July 1, 2024, the deadlines for the Modernization of Cosmetics Regulatory Act (MoCRA) will go into effect. This bill gives the FDA significantly greater enforcement authority for products that violate FDA standards.