Kroger, the supermarket chain, sells a store brand of sunscreen that is labeled as "reef friendly." A consumer sued Kroger, as well as the manufacturer of the sunscreen, Fruit of the Earth, alleging that the "reef friendly" claim is false and misleading because the product sunscreen contains various chemical ingredients that are not, in fact, safe for reefs.
Kroger moved to dismiss the lawsuit on the grounds that the "reef friendly" claim is mere puffery. Puffery is generally considered to be a subjective, exaggerated, statement of opinion, that is not provable or disprovable, and which consumers would not rely on when making a purchasing decision. (We blog about puffery cases all the time -- such as whether statements such as " free range," " slightly sweet," " therapeutic-grade," and " gently removes makeup" are puffery.)
Not surprisingly, the court denied Kroger's motion to dismiss, holding that the company had failed to demonstrate, at least at this stage in the litigation, that the "reef friendly" statement is "too generalized, vague, subjective, and/or constitute exaggerated boasting, such that a consumer cannot reasonably rely on the claim."
The court distinguished other cases where "friendly" claims -- "user-friendly" waterproofing products and "pet friendly" bamboo flooring -- were held to be puffery. The court explained, "Where a reasonable inference exists that consumers may be looking for sunscreen products that are not damaging to reefs, however, 'reef friendly' may reasonably be understood as implying defendants' products meet those criteria."
What seemed to really drive the court's decision, however, was existing
White v.
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