Sunscreen firm Ego Pharmaceuticals fined over unsubstantiated SPF claims

An Australian sunscreen firm has been fined $280,000 fine for making unsubstantiated claims about the protection offered by two of its products.

Ego Pharmaceuticals was probed by the Commerce Commission after a complaint from Consumer NZ relating to its Ego Sunsense Sensitive Invisible SPF50+ and Ego Sunsense Ultra SPF50+.

Independent testing from Consumer NZ in 2018 and 2019 revealed that the products only offered moderate protection despite being advertised as having “very high” protection.

Consumer NZ chief executive Jon Duffy said that Ego offered test results showing that the sunscreens did offer a Sun Protection Factor (SPF) of 50+ but the certificates came from a US laboratory that would later admit to defrauding customers and causing sunscreens to be marketed on the basis of false lab reports.

In a judgment decision released last week by the Auckland District Court, Judge Dawson said, “the principle sentencing factor in this case must [be] that of deterrence”.

”While none of the harm to persons using the product or commercial competitors can be accurately quantified, its existence needs to be acknowledged in the sentence imposed.”

In a statement, Commerce Commission chairwoman Anna Rawlings said the case highlights the need for businesses to have a proper basis for claims they make - because customers could not be expected to easily verify them.

”We expect representations about the effectiveness of products can be supported by credible and reliable evidence, at the time the representations are made and throughout the supply of the products, particularly if new evidence calls into question the reliability of the earlier evidence.”This is particularly important because effectiveness claims are difficult, if not impossible, for consumers to be able to verify themselves.”

“It’s great to see the courts taking this behaviour so seriously,” Duffy said. “New Zealand has the highest melanoma rates in the world, and sunscreen is not something any of us can afford to gamble with.

“New Zealanders must be able to shop with confidence and trust that any sunscreen they buy provides the protection stated on the label. The fine imposed on Ego sends a strong message that sunscreen manufacturers will be held to account for dodgy dealings.”

The Sunscreen (Product Safety Standard) Act became law in September of this year, meaning that sunscreens are now regulated under the Fair Trading Act (FTA) and companies that breach the requirements face fines of up to $600,000.

Duffy said that Consumer NZ believes more can be done to protect New Zealanders and called for sunscreen to be regulated as a therapeutic product, rather than a cosmetic.

“Complying with the standard isn’t enough,” he said. “Sunscreens need to be tested regularly to ensure different batches provide the claimed protection. The current standard doesn’t require regular testing. Consumer has been testing sunscreens for many years and finds companies are sometimes relying on tests that are several years old to support their label claims.”

The two Ego products have not been sold here since December 2019 and the company issued a withdrawal notice for the products in June 2020.

The Commerce Commission says it encourages consumers with any concerns about their sunscreen products to contact the supplier or manufacturer in the first instance and complain on the commission’s website here if they believe the Fair Trading Act has been breached.