Appeals Court Rejects Neutrogena, Aveeno Sunscreen Lawsuit Settlement

Following challenges regarding the fairness of a sunscreen class action settlement, an appeals court has overturned the agreement and sent the case back to the Southern District of Florida

A federal appeals court has thrown out a spray sunscreen benzene lawsuit settlement involving Johnson & Johnson’s Neutrogena and Aveeno products, sending the agreement back to a lower court for re-evaluation.

Johnson & Johnson has faced several sunscreen class action lawsuits brought throughout the federal court system over the past few years, following the discovery that aerosol spray bottles of Neutrogena and Aveeno sunscreen were contaminated with dangerously high levels of benzene, which may increase the risk of cancer and other injuries.

The litigation emerged after a massive sunscreen recall was issued in 2021, and the manufacturer reached an agreement last year to settle economic loss class action claims by providing refunds and vouchers to individuals who purchased the contaminated products. However, certain class members challenged the settlement, leading to a review by the U.S. Court of Appeals for the 11th Circuit.

Benzene Health Risks

Benzene is an industrial chemical that has long been linked to fatal forms of leukemia and other cancers. The FDA considers it a solvent which should not be used in drug products, if avoidable. However, if benzene is not avoidable, it should be restricted to 2 parts per million (ppm), FDA regulations state.

Long-term side effects of benzene exposure have been proven to cause anemia, which is a condition that develops when your blood lacks enough healthy red blood cells or hemoglobin. Essentially, the chemical causes bone marrow not to produce enough red blood cells, which can damage an individual’s immune system.

Federal regulators have determined long-term exposure to benzene can significantly impact blood cells, to the extent it causes cancer such as leukemia, a cancer of the blood-forming organs. Potential illnesses linked to benzene exposure include Acute Myeloid Leukemia (AML), Chronic Myelogenous Leukemia (CML), Acute Lymphocytic Leukemia (ALL), Chronic Lymphocytic Leukemia (CLL), Hairy Cell Leukemia (HCL), Non-Hodgkin’s Lymphoma, Multiple Myeloma, Myelodysplastic Syndrome (MDL), Myelofibrosis and Myeloid Metaplasia, Aplastic Anemia and Thrombocytopenic Purpura.

As a result, a number of consumers are now pursuing sunscreen recall lawsuits against Johnson & Johnson, alleging that they developed various types of cancer after routinely applying large amounts of benzene contaminated sunscreen to their bodies for years. In addition, separate sunscreen class action lawsuits have been filed on behalf of all consumers who purchased the contaminated products.

Given common questions of fact and law raised in complaints filed throughout the federal court system, all Neutrogena and Aveeno sunscreen lawsuits were centralized for coordinated pretrial proceedings as part of a federal MDL, or multidistrict litigation, in the U.S. District Court for the Southern District of Florida, before Judge Raag Singhal.

In February, Judge Singhal granted final approval for a Neutrogena and Aveeno sunscreen class action settlement, which would resolve the economic loss claims by providing class members a full refund for the price of purchasing the recalled spray sunscreen products, and an additional $1.75 million in vouchers for consumers who purchased benzene-tainted products that were not subjected to the recall.

However, one plaintiff, Theodore Frank, objected to the settlement, arguing that it was unfair since plaintiffs’ attorneys would be paid $2.6 million as part of the deal, while it was likely only half of the $1.75 million in vouchers would ever be redeemed.

In an opinion (PDF) issued on June 20, the appeals court ruled in Frank’s favor, overturning the agreement and remanding the case back to the Southern District of Florida, where the appellate judges ordered Judge Singhal to recalculate the voucher amounts and attorneys’ fees.

The judges also instructed the lower court to investigate whether the plaintiffs had standing to require Johnson & Johnson to “purge any existing inventory of the isobutane aerosol propellant found to be the source of the benzene and to establish new testing protocols for the presence of benzene in its supply chain and finished sunscreen products”, as part of the settlement agreement.

In addition to the class action claims seeking refunds, Johnson & Johnson still faces potential sunscreen cancer lawsuits brought on behalf of consumers who developed various forms of blood cancers following regular use of recalled Neutrogena or Aveeno products.