Settlement Will Require Major Consumer Education Campaign
Schering-Plough Healthcare Products, Inc., the marketer of Coppertone Kids sunscreens for children, has agreed to settle Federal Trade Commission charges that ads for its Coppertone Kids 6-Hour Waterproof Sunblock were deceptive. According to the FTC, Coppertone ads claimed that one application of Coppertone Kids provides six hours of protection from the sun for children engaged in sustained vigorous activity in and out of the water. The FTC alleged that the claim was unsubstantiated because the company did not test the product under those conditions. The agreement to settle the FTC charges will bar deceptive claims about the effectiveness of sunscreens marketed for use on children and will require that the company produce and distribute 150,000 consumer education brochures to alert parents to the importance of sunscreen protection for children and the need to reapply sunscreens after toweling or sustained vigorous activity.
"You can't use a smokescreen to sell a sunscreen -- especially when it can affect the health and safety of children," said Jodie Bernstein, Director of the FTC's Bureau of Consumer Protection. "We know that regular use of sunscreens during childhood can reduce the risk of skin cancer later in life. But towel drying or active playing on the beach or on the playground can lessen the effectiveness of the sunscreen. Parents shouldn't assume that with one application of sunscreen their children remain fully protected from the hazards of sun exposure," she said.
According to the FTC complaint detailing the charges, ads for Coppertone Kids ran on radio, TV, and in printed publications. Some of the ads showed children diving and playing in a pool and at the beach. Ad copy included statements like:
- ". . . Now there's new Coppertone Kids 6 Hour Waterproof Sunblock. It keeps a kid protected from the sun, and waterproof for a full six hours. So mom puts it on...and cuts them loose;
- "Coppertone Kids Sunblock lasts through 32 back flips, 64 cannonballs and 52 belly flops . . . It goes on. And goes on protecting. In and out of the water, all day long. Because it's the sunblock that keeps kids protected from the sun, and waterproof for a full six hours. As proven by kids themselves in test after test," and;
- "All Coppertone Children's Sunblocks are clinically tested on children. . . "
The complaint alleges that Schering-Plough Healthcare Products did not have substantiation for the claim that one application of Coppertone Kids provides six hours of protection for children engaged in sustained vigorous activity in and out of the water. According to the complaint, none of the company's tests evaluated a single application of the product under these conditions. Therefore, the ads were false and misleading, the complaint says.
The agreement to settle the FTC charges would bar Schering Plough Healthcare from making certain claims about the effectiveness of, or length of, protection provided by any children's sun protection product unless the company has scientific substantiation for the claims. The order also prohibits the company from misrepresenting the existence, contents, validity results or conclusions of any test or study concerning any sun protection products.
In addition, Schering-Plough Healthcare will be required to produce and distribute consumer brochures that will highlight the following themes:
- the importance of sunscreens in preventing skin damage, including skin cancer, sunburn and premature skin aging;
- regular use of a high SPF sunscreen during childhood can significantly reduce the risk of certain types of skin cancers in later life;
- a single bad sunburn during childhood can significantly increase a child's risk of developing skin cancer later in life;
- the importance of proper application of sunscreens;
- the need to reapply sunscreens after toweling or sustained vigorous activity, and;
- the need to use sunscreens during any outdoor activity -- not just in connection with water activities.
The company will distribute 150,000 brochures to organizations with direct access to parents and others who work with or care for children. The brochure and dissemination plan are subject to FTC approval.
The Commission vote to accept the proposed consent agreement for public comment was 5-0, with Commissioners Mary L. Azcuenaga and Roscoe B. Starek, III, issuing separate statements.
Commissioner Azcuenaga stated that she concurred with the decision to accept the proposed consent agreement except with respect to that part of the proposed order that requires that Schering develop a consumer education brochure addressing the dangers of unprotected exposure to the sun. "Consumer education brochures are an integral part of the Commission's consumer protection program, but they are not necessarily defensible adjuncts to Commission orders," she said in her statement. "Presumably, the brochure requirement will not be unduly burdensome or costly for Schering because it will promote the use of its product, and the brochure is undoubtedly commendable as a public health initiative. Nevertheless, under the circumstances, it is an overly broad order requirement as measured against the current standard for ordering relief. There is a value to the Commission in maintaining the integrity of the standard for imposing a fencing-in remedy," she said.
Commissioner Starek stated that he does not support the agreement's provision requiring Schering to produce a consumer education brochure. "As set forth in the proposed order, this consumer education remedy is overbroad and in any event is unlikely to assist in the prevention of the violations alleged in the complaint," his statement says. Noting that the mandated consumer education brochure would require inclusion of six different "messages" or "themes," Starek's statement says, "Of the six required messages, only [one] seems likely to assist in the prevention of future deception like or related to that alleged in the complaint. Yet by including this key reapplication information in an extensive list of other facts about sunscreen, the order makes it less likely that consumers will see the reapplication information." Starek continued, "It is also troubling that if the Commission issues this order, it essentially will be ordering the respondent to advertise that persons should buy and use more of the respondent's products. Schering already has every incentive to communicate the required messages to consumers. . . Finally, if this relief were sought in litigation, rather than obtained through a consent agreement, it would not withstand scrutiny under the First Amendment. For purposes of First Amendment analysis, there is no difference between compelled speech and restrictions on speech," he said. Starek concluded by saying, "In my view, it would be better to have no consumer information remedy in the consent order if the only alternative is an overbroad remedy of doubtful efficacy that raises First Amendment concerns."
An analysis of the proposed consent agreement will be published in the Federal Register shortly and will be subject to public comment for 60 days, after which the Commission will decide whether to make it final. Comments should be addressed to the FTC, Office of the Secretary, 6th Street and Pennsylvania Avenue, N.W., Washington, D.C. 20580.
NOTE: A consent agreement is for settlement purposes only and does not constitute an admission of a law violation. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of $11,000.
Copies of the complaint, proposed consent agreement, Commissioners Azcuenaga and Starek's statements, an analysis to aid public comment and FTC brochures entitled,"Sunscreens," "Protecting Kids from the Sun" and "Indoor Tanning," are available on the Internet at the FTC's World Wide Web site at http://www.ftc.gov (no period) or by calling 202-326-3627. FTC documents also are available from the FTC's Public Reference Branch, Room 130, 6th Street and Pennsylvania Avenue, N.W., Washington, D.C. 20580; 202-326-2222; TTY for the hearing impaired 1-866-653-4261. To find out the latest news as it is announced, call the FTC NewsPhone recording at 202-326-2710.
(FTC File No. 942 3341)
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