Will Sunscreen be the Next Big Mass Tort or Just the Next Big Safety Recall?

It’s the peak of the summer beach season, but if you drop by your local retailer to pick up some sunscreen, you will likely see a lot of empty shelf space. Why? Because independent consumer product testing recently discovered that a number of major sunscreen products contained hazardous levels of benzene. Benzene is a notorious and well-known human carcinogen that is very harmful to the human body.

In response to this discovery, manufacturers and major retailers have started pulling sunscreen spray, lotion, and other products from their shelves. Now plaintiffs’ lawyers around the country are evaluating whether contaminated sunscreen lawsuits could be the next big mass tort.

Valisure Finds Dangerous Levels of Benzene in Sunscreen Products

Valisure is an independent, online pharmacy that has become a powerful consumer watchdog. Valisure has a research and testing laboratory that does quality and safety testing on drugs and all sorts of other consumer products. The goal of this testing is to protect consumers from low-quality medications and products.

Over the last few years, Valisure’s quality testing program has made a number of major discoveries. In 2018 Valisure’s random quality testing of Zantac discovered high levels of NDMA which led to a nationwide recall and thousands of Zantac lawsuits.

Early this year, Valisure focused its consumer protection spotlight on the sunscreen and sunblock industry and began performing quality testing and chemical analysis on hundreds of sun protection products. On May 25, 2021, Valisure publicly announced that it found 78 sunscreen and after-sun care products that contained unsafe levels of benzene. Benzene is an industrial chemical that is well-known to cause cancer. Based on these findings, Valisure filed an FDA citizen petition asking the FDA to recall certain sunscreen products and adopt stricter guidelines on benzene contamination.

Recall of Sunscreen Products

At first, the reaction to Valisure’s discovery of benzene in sunscreen products was fairly muted and didn’t prompt any immediate action. That changed yesterday, however, when pharmaceutical and consumer product giant Johnson & Johnson announced a voluntary recall of several major sunscreen brands. The products recalled by J&J include 5 Neutrogena and Aveeno brand aerosol spray sunscreens which were some of the most popular brands on the market. The recalled J&J products include:

  • NEUTROGENA® Beach Defense® aerosol sunscreen,
  • NEUTROGENA® Cool Dry Sport aerosol sunscreen,
  • NEUTROGENA® Invisible Daily™ defense aerosol sunscreen,
  • NEUTROGENA® Ultra Sheer® aerosol sunscreen, and
  • AVEENO® Protect + Refresh aerosol sunscreen.

J&J’s decision to recall these products apparently came after they performed their own testing and confirmed that high levels of benzene were present.

The recall announcement by Johnson & Johnson thrust the contaminated sunscreen story into the national news spotlight which sparked some immediate reactions by major retail chains and pharmacies. Walmart, CVS, and Walgreens all publicly announced that they were complying with the J&J recall and also pulling some additional sunscreen products that may contain benzene.

Will This Lead to a Wave of Sunscreen Lawsuits?

Anytime you see a major product safety recall, especially one involving a known carcinogen like benzene, it obviously raises the question of whether we can expect to see thousands of product liability lawsuits follow. Right now, I think the answer is a hard NO, and here’s why. (October 2021 Update: I’m changing my mind on this.)

Right now, all we have is the Valisure safety testing which found that various products contained benzene that was higher than the daily safe level set by the FDA. We don’t have any type of medical or scientific study establishing a link between regular use of benzene-contaminated sunscreens and cancer or any other type of adverse health conditions.

Until we get some type of study or report finding a causal link between the contaminated sunscreens and cancer or other harm, there is really no basis for a sunscreen product liability lawsuit. Moreover, based on the available information that is coming out so far I don’t think it’s very likely that we will EVER get such as study linking contaminated sunscreen to cancer.

J&J and others have already publicly come out and said that exposure to the levels of benzene found in the contaminated sunscreen products is not enough to cause serious physical harm. In comments to Reuters, a J&J spokesperson stated that “[d]aily exposure to benzene in these … sunscreen products at the levels detected in our testing would not be expected to cause adverse health consequences.”

The other, more practical problem which could frustrate any effort to scientifically link the use of contaminated sunscreen products to cancer or other health effects is the ubiquitous and irregular nature of sunscreen use. These days almost everyone uses sunscreen when they go to the beach or spend time out in the sun. However, most people pay very little attention to what type of brand of sunscreen they apply and brand loyalty is not really a thing with sunscreen.

Also, with the possible exception of lifeguards or others who work all day in the sun with few clothes, very few people use sunscreen on a daily basis for any prolonged time period. These 2 factors will make it very difficult for any type of scientific study to be done on the health effects of contaminated sunscreen use. It is just going to be exceedingly difficult to identify a large sample group of people who used the same sunscreen product every day for a period of at least 1 or 2 years — which is what you would probably need to establish evidence of any causation.

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