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GUEST COLUMN by Judith L. Grubner, Esq., Arnstein & Lehr Partner and Intellectual Property Practice Group Leader

Some of us remember when parents would chase their children out to play in the sun, with no protection other than play clothes.  Today, the Federal Trade Commission tells us

overexposure to the sun’s invisible rays – ultraviolet A (UVA) and ultraviolet B (UVB) – can cause skin damage. The damage can be immediate and long-term, with effects ranging from sunburn, rashes, and cell and tissue damage to premature wrinkling and skin cancer. Indeed, many skin changes that often are identified with aging actually result from damage by too much sun. . .To help reduce your risk of skin damage from sunlight, try to minimize your exposure to the sun between 10 a.m. and 3 p.m., when the sun’s rays are strongest. Even casual exposure to sunlight – driving a car, walking to the store, taking an outdoor lunch break – contributes to cumulative lifetime exposure. If you’re out during the peak hours, wear a hat and tightly-woven clothing that covers your body, and use maximum protection sunscreens.  It’s important to understand the labeling information on sun protection products and shop carefully before heading to the beach, tennis court or park. The FTC carefully monitors advertising claims in this area and offers this information to help you make wise purchasing decisions.

Consumers have taken this advice to heart, driving a highly competitive market in sun protection products.

A battle between Schering-Plough and Neutrogena over their respective advertising claims for sunscreens is heating up.  A few months ago,    Schering-Plough, maker of Coppertone  Sport sunscreens, sued major competitor Neutrogena, maker of  Ultimate Sport sunscreens, for alleged false advertising claims favorably comparing the benefits of Neutrogena’s Helioplex sunscreen formula to Coppertone’s formula.  The alleged false claim is that a sunscreen must have Helioplex to provide UVA and/or UVB protection.  Schering-Plough also complained that Neutrogena was falsely claiming that its ULTIMATE SPORT product was the “Best line of sport sun protection.”

Neutrogena fought back with counterclaims that Schering-Plough’s Coppertone Sport ads were falsely claiming that only Coppertone NutraShield with Dual Defense provides both UVA/UVB protection and antioxidants that promote skin repair, that Schering-Plough’s TV commercials falsely claim that 28% of the Ultimate Sport product sprayed on a body is chemical propellant, that Coppertone Sport sprays provide “better protective coverage” than Neutrogena’s sport sprays and that the Coppertone sprays provide better sun protection than the Neutrogena Ultimate Sport sprays.

In this Lanham Act case in the federal district court in Delaware, Schering-Plough is currently trying to obtain a preliminary injunction against Neutrogena’s sunscreen advertising claims that, if issued,  would include corrective advertising obligations.    Neutrogena is also asking the court for an injunction against Schering-Plough’s advertising claims.  It will be a long hot summer for these combatants.