UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Edith Ramirez, Chairwoman

Maureen K. Ohlhausen

Terrell McSweeny

In the Matter of

California Naturel, Inc., DOCKET NO. 9370

a corporation, 

OPINION OF THE COMMISSION

By Chairwoman Edith Ramirez, for the Commission.

We have before us a motion by Complaint Counsel seeking summary decision against 

Respondent California Naturel, Inc., a seller and marketer of personal care products. California 

Naturel markets its sunscreen product as “all natural,” describing the product on its website as 

containing “only the purest, most luxurious and effective ingredients found in nature.” The 

company, however, admits that eight percent of its sunscreen formula is dimethicone, a synthetic 

ingredient. On these simple and undisputed facts, Complaint Counsel seeks a summary finding 

that California Naturel is falsely advertising its sunscreen. As discussed below, we grant 

summary decision and issue an order prohibiting California Naturel from misrepresenting the 

ingredients or composition of its products. 

I. Background

On April 11, 2016, the Commission issued an administrative complaint alleging that 

California Naturel falsely advertises its Sunscreen SPF 30 product as an “all natural” sunscreen

when in fact it contains the synthetic ingredient dimethicone, in violation of Sections 5 and 12 of 

the Federal Trade Commission Act. 

On May 6, 2016, California Naturel’s president, John Bernard Duler, submitted an 

answer to the complaint on the company’s behalf as permitted by Rule 4.1(a)(2)(i) of the 

Commission’s Rules of Practice, 16 C.F.R. § 4.1(a)(2)(i).

1

 In its answer, California Naturel does 

 1 California Naturel’s answer does not comply with all of the requirements of Rule 4.2, 16 C.F.R. § 4.2. However, 

in substance, it responds to the allegations in the complaint, and we therefore accept it as an answer. Cf. Yakima 

Fruit & Cold Storage Co., 59 F.T.C. 693, 705 (1961) (holding that Commission has discretion to accept review of 
2

not dispute that the Commission has jurisdiction over it and over the conduct challenged in the 

complaint. It does deny that its “all natural” advertising is false or misleading. Among other 

things, California Naturel asserts in its answer that, as a result of the FTC’s investigation, it now 

includes a disclaimer on its website that the ingredient dimethicone in its sunscreen is synthetic. 

Complaint Counsel filed their motion for summary decision on September 14, 2016. 

They contend that California Naturel has admitted that its Sunscreen SPF 30 contains eight 

percent dimethicone, a synthetic substance, and thus effectively admitted that its advertising 

claims are false. California Naturel disputes that its advertising is false or misleading. It argues

that, as of early 2016, it has sufficiently disclosed the ingredients in Sunscreen SPF 30. In 

particular, it cites what it contends is a readily visible disclosure statement on its website 

specifying that eight percent of its “all natural” sunscreen formula is dimethicone, a synthetic 

ingredient. 

We review Complaint Counsel’s motion for summary decision pursuant to Rule of 

Practice 3.24, 16 C.F.R. § 3.24, which parallels Federal Rule of Civil Procedure 56 governing 

summary judgment in the federal courts. Consistent with Rule 56, a party moving for summary 

decision must show that “there is no genuine issue as to any material fact.” Id. We may 

therefore rely on authority applying the federal summary judgment standard. See, e.g., Fanning 

v. FTC, 821 F.3d 164, 170 (1st Cir. 2016) (under FTC rules, summary decision is reviewed 

“under the same standard as summary judgment before a district court”), petition for cert. 

docketed, (Sept. 27, 2016) (No. 16-397).

As the moving party, Complaint Counsel bears the initial burden of identifying evidence 

that demonstrates the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 

477 U.S. 317, 323 (1986). When a motion for summary decision is made and supported, the 

“party opposing the motion may not rest upon the mere allegations or denials of his or her 

pleading; the response, by affidavits or as otherwise provided in this rule, must set forth specific 

facts showing that there is a genuine issue of material fact for trial.” 16 C.F.R. § 3.24(a)(3); see 

also Celotex, 477 U.S. at 323. We are required to resolve all factual ambiguities and draw all 

justifiable inferences in the light most favorable to California Naturel, the party opposing the 

motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). We now turn to an analysis 

of Complaint Counsel’s motion.

II. Analysis

Section 5 of the FTC Act prohibits “unfair or deceptive acts or practices in or affecting 

commerce.” 15 U.S.C. § 45(a). Section 12 proscribes the dissemination of any “false 

advertisement,” for food, drugs, devices, services, or cosmetics. Id. § 52(a). The deception 

standard is the same under both provisions. POM Wonderful LLC, 2013 WL 268926, at *18. n.5 

(F.T.C. Jan. 16, 2013), aff’d sub nom. POM Wonderful, LLC v. FTC, 777 F.3d 478 (D.C. Cir. 

2015); see also Kraft, Inc. v. FTC, 970 F.2d 311, 314 (7th Cir. 1992).

 

an initial decision when request for review was in the form of a letter addressed to the Chairman rather than in the 

form of a brief as required by the Commission’s Rules of Practice).
3

“An advertisement is deceptive if it contains a representation or omission of fact that is 

likely to mislead a consumer acting reasonably under the circumstances, and that representation 

or omission is material to a consumer’s purchasing decision.” POM Wonderful, 2013 WL 

268926, at *18; FTC Policy Statement on Deception, 103 F.T.C. 174, 175 (1984) (“Deception 

Statement”), appended to Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984). Determining whether 

California Naturel has violated the FTC Act thus consists of a three-part inquiry. We must 

evaluate whether, as a matter of law, California Naturel’s advertising conveyed the claim alleged 

in the complaint, the claim was false or misleading, and the claim was material. See POM 

Wonderful, 2013 WL 268926, at *18; FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 

1994); FTC v. Direct Mktg. Concepts, Inc., 569 F. Supp. 2d 285, 297 (D. Mass. 2008), aff’d, 624 

F.3d 1 (lst Cir. 2010).

We first consider what claims California Naturel has conveyed in marketing its 

Sunscreen SPF 30. A claim may be either express or implied; express claims are those that 

directly state the representation at issue. Kraft, Inc. v. FTC, 114 F.T.C. 40, 120 (1991). “In 

determining what claims may reasonably be attributed to an advertisement, the Commission 

examines the entire advertisement and assesses the overall ‘net impression’ it conveys.” POM 

Wonderful, 2013 WL 268926, at *19 (citing Deception Statement, 103 F.T.C. at 178). Extrinsic 

evidence is unnecessary to establish the impression that consumers would take away from an ad 

if the claim is reasonably clear from the face of the advertisement. Id., at *20.

The net impression conveyed by California Naturel’s representations regarding its 

Sunscreen SPF 30 is clear from a facial analysis. It is undisputed that California Naturel

expressly advertises Sunscreen SPF 30 as “all natural.” The sunscreen itself bears the 

description “All Natural.” See Attachment A.2

 On its website, California Naturel states with 

respect to Sunscreen SPF 30: 

This soft, luxurious and non-oily all natural sunscreen is formulated with Glacial 

Oceanic Minerals and Zinc Oxide to protect the skin from both UVA and UVB 

rays. It is enriched with antioxidants from botanical sources such as Shea Butter, 

Pomegranate Extract and Marigold Flower Extract to increase skin-hydration and 

protect it from environmental damage. 

In addition, the website describes the sunscreen’s ingredients as follows:

California Naturel uses only the purest, most luxurious and effective ingredients

found in nature. All of our formulas are naturally scented and free of parabens, 

sulfates, and harsh synthetic chemicals. 

 2 California Naturel has urged the Commission to examine its current website, and we have done so. Pursuant to 

16 C.F.R. § 3.43(f), we take official notice of the content of California Naturel’s website and attach relevant portions 

as Attachments A and B. See Sunscreen SPF 30, CALIFORNIA NATUREL, 

http://www.californianaturel.com/sunscreen-spf-30 (last visited Oct. 21, 2016) (Attachment A); Our Ingredients, 

CALIFORNIA NATUREL, http://www.californianaturel.com/ ingredients#filter=.f-ss (last visited Oct. 21, 2016) 

(Attachment B). The procedures set forth in 16 C.F.R. § 3.55 afford an opportunity to challenge the noticed facts 

and our inferences therefrom. 
4

See Declaration of Brittani Garland in support of Motion for Summary Decision (May 31, 2016)

(“Garland Decl.”), ¶ 3 and screenshots attached as Exhibits A and B to the Complaint. 

California Naturel does not, nor can it, dispute that it has consistently advertised its 

sunscreen as an “all natural” product and represented that it uses “only the purest, most luxurious 

and effective ingredients found in nature.” Instead, it opposes summary decision by pointing to a 

disclaimer it added to the bottom of the sunscreen webpage in “early 2016” after the FTC began 

its investigation. Opposition to Motion for Summary Decision (“Opp.”) at 1. The disclaimer 

states, “The FTC requires us to add the following: ‘Dimethicone, a synthetic ingredient, is 8% of 

the sunscreen formula, the remaining 92% are natural products.’” Id.; see also Answer at 3. 

California Naturel argues that the disclaimer and other portions of its website adequately disclose 

that the sunscreen contains the synthetic ingredient dimethicone. Put differently, California 

Naturel contends that its marketing claims are not false or misleading. We disagree.

As an initial matter, there is no question that prior to early 2016, California Naturel 

expressly marketed its sunscreen as an “all natural” product and that it did not include the 

disclaimer on which it now relies. Other than adding the referenced disclaimer, California 

Naturel has not changed the representations challenged in the complaint. As noted above, in 

addition to the express and prominent claim on the product that Sunscreen SPF 30 is “all 

natural,” California Naturel describes the sunscreen on its website as a “soft, luxurious and nonoily all natural sunscreen” and states that it “uses only the purest, most luxurious and effective 

ingredients found in nature.” Garland Decl. ¶ 3, and screenshots attached as Exhibits A and B to 

the Complaint (emphasis added). This plainly conveys to reasonable consumers that every 

ingredient in the product is natural. The recent addition by California Naturel of a disclaimer on 

its website does not excuse deception that has already occurred. See, e.g., Libbey-Owens-Ford 

Glass Co. v. FTC, 352 F.2d 415, 418 (6th Cir. 1965).

Nor are we persuaded by California Naturel’s argument that the disclaimer it added 

renders its marketing claims “transparent.” The sunscreen itself continues to state it is “all 

natural.”3

 And California Naturel continues to prominently display the “all natural” language 

discussed above on its website. See Attachments A, B. Adding a disclaimer to the bottom of the 

webpage that is well removed from proximity to the “all natural” claims – and, in fact, not 

visible at all without scrolling down – does not change the net impression conveyed to 

consumers that the product is “all natural.” See FTC v. Direct Mktg. Concepts, Inc., 624 F.3d 1,

12 (1st Cir. 2010) (inconspicuous disclaimer that infomercial was paid advertising and that 

statements were opinion was insufficient to correct “bold and straightforward” claims that 

supplements could cure or prevent disease); FTC v. Cyberspace.Com LLC, 453 F.3d 1196, 1201 

(9th Cir. 2006) (finding fine print notices on the back of solicitations insufficient to overcome 

deceptive nature of front-side communications). Notably, the disclaimer is also well below the 

 3 In addition to citing to its new disclaimer, California Naturel represents that it has produced stickers containing the 

same disclaimer language and placed them on the product packaging. Opp. at 2; Answer at 6. Because no such 

stickers are visible on the product images depicted in California Naturel’s website, and there is no other evidence of 

how the stickers appear on the sunscreen packaging, we do not consider the stickers as part of our analysis. We 

note, however, that in light of the prominent and express “all natural” claims on California Naturel’s website and the 

absence of any indication that consumers would see the stickers before making an online purchase, we are skeptical 

that a sticker would suffice to address our concerns about the net impression conveyed.
5

website’s “Add to Cart” button so that consumers are invited to purchase the product before they 

would even see the disclaimer. In guidance on online disclosures, we have urged that disclosures 

“be provided before the consumer makes the decision to buy, e.g., before clicking on an ‘order 

now’ button or a link that says ‘add to shopping cart.’” FEDERAL TRADE COMMISSION, .COM 

DISCLOSURES: HOW TO MAKE EFFECTIVE DISCLOSURES IN DIGITAL ADVERTISING 14 (March

2013).

4

In her partial dissent, Commissioner Ohlhausen questions the propriety of determining as 

a matter of summary decision the impact of California Naturel’s 2016 website disclaimer, 

arguing that such a determination is both unnecessary and improper.5 While it may not be 

necessary to rule on the effect of California Naturel’s disclaimer on the net impression conveyed 

to consumers, it is entirely appropriate for the Commission to do so. As noted above, California 

Naturel cites its new disclaimer as its principal defense against Complaint Counsel’s allegations 

of deception and motion for summary decision, and asks us to examine its updated website to 

evaluate the effect of the disclaimer on its advertising claims. We have taken official notice of 

California Naturel’s website and determined that there are no disputed facts regarding the 

placement or font size of the disclaimer.6 Just as we engaged in a facial analysis to evaluate the 

net impression of California Naturel’s advertising claims prior to the addition of the disclaimer, 

we can appropriately perform a facial analysis to determine the effect of the disclaimer. See, 

e.g., Daniel Chapter One, 2009 FTC LEXIS 259, at *24 (F.T.C. Dec. 24, 2009) (conducting 

facial analysis of a disclaimer’s print size, positioning, and scope); Kraft, Inc., 114 F.T.C. 40, 

122-28 (1991) (finding disclosures ineffective to dispel the net impression otherwise presented in 

view of the disclosures’ brevity, placement, and complexity). 

Courts have similarly not hesitated to find disclaimers ineffective to dispel deceptive 

claims when the Commission has moved for summary judgment. See, e.g., Cyberspace.Com, 

453 F.3d at 1201 (finding that “no reasonable factfinder could conclude that the solicitation was 

not likely to deceive consumers” despite the presence of fine-print disclosures on the back of the 

marketing material); Direct Mktg. Concepts, 624 F.3d at 24 n.9 (concluding from a facial 

examination that the disclaimer would not cure deceptive infomercials). In fact, declining to 

address the disclaimer’s sufficiency could create the misimpression that the disclaimer cures the 

deception. As a matter of transparency and efficiency, the Commission should make clear that 

California Naturel’s disclaimer does not cure its deceptive “all natural” claims. In our view, 

sidestepping the issue now only to argue later in a potential contempt action that the 

Commission’s order has been violated would not serve the interests of either the public or 

California Naturel.

 4 The FTC disclosure guidelines are available at https://www.ftc.gov/sites/default/files/attachments/pressreleases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf. 5 Commissioner Ohlhausen agrees that the “all natural” claims made prior to the addition of the disclaimer were 

false and misleading. In her view, however, there is a fact question as to whether California Naturel has since 

clarified its “all natural” claims through its recently-added disclaimer and new stickers to accompany product 

packaging. As explained in her partial dissent, she believes that granting summary decision on that point is 

inappropriate and thus does not join the portion of the opinion holding that the disclaimer is insufficient to qualify 

California Naturel’s “all natural” claims, based on the current record. 6 See supra note 2.
6

California Naturel also points to a list of ingredients that appears if one scrolls down on 

its Sunscreen SPF 30 webpage. This list, however, does nothing to dispel the net impression that 

the sunscreen is “all natural.” It first identifies one ingredient, zinc oxide, as the active 

ingredient, and then lists 31 other ingredients using scientific terminology. Buried in the middle 

of the list is dimethicone. All of the ingredients are in the same font and font size, and nothing 

on the face of the list identifies dimethicone as a synthetic ingredient. California Naturel 

nonetheless asserts that the website is “transparent” because a consumer can click on the word 

“dimethicone,” which takes the consumer to the general “ingredients” webpage. If the cursor is 

properly positioned, this webpage identifies dimethicone as a “silicone-based polymer.” Case 

law, however, establishes that it is reasonable for a consumer to rely on express claims, and thus 

that they should not be required to search for and dig out information that contradicts what an 

advertisement expressly and prominently conveys. Indeed, we expect consumers to rely on 

express statements such as the “all natural” representation at issue here, and to interpret such 

statements as meaning what they say. See FTC v. Skybiz.com, Inc., 2001 WL 1673645, at *9 

(N.D. Okla. 2001) (reasonable to expect that consumers could rely on express claims); FTC v. 

Five-Star Auto Club, Inc., 97 F. Supp. 2d 502, 528 (S.D.N.Y. 2000) (“Consumer reliance on 

express claims is [ ] presumptively reasonable.”) (internal quotation omitted).

As purported evidence of the supposed transparency of its disclaimer and ingredient list, 

California Naturel points to an article referencing this case by an investigative reporter for the 

Wall Street Journal. California Naturel notes that the article quotes California Naturel’s 

recently-added website disclaimer that “Dimethicone, a synthetic ingredient, is 8% of the 

sunscreen formula” and asserts that the reporter also saw the ingredient list. Opp. at 1; Answer 

at 3 (citing Serena Ng, FTC Charges Five ‘Natural’ Products Firms Over Claims, WALL ST. J.,

(Apr. 13, 2016), available at http://www.wsj.com/articles/ftc-charges-five-natural-products-firms 

over-claims-146050). However, we look at claims from the viewpoint of the average consumer, 

and the fact that an investigative reporter researching a story about “all natural” claims located 

the disclaimer and saw dimethicone on the ingredient list does not alter our conclusion regarding 

the net impression of the website.

7

 See Thompson Med. Co., Inc., 104 F.T.C. 648, 810 (1984) 

(focusing the deception inquiry on “average or ordinary members of the adult population”), aff’d, 

791 F.2d 189 (D.C. Cir. 1986); Kraft, 114 F.T.C. at 122.

We therefore find that California Naturel’s advertising conveys that its sunscreen is “all

natural,” meaning it contains only ingredients found in nature. See, e.g., Williams v. Gerber 

Prods. Co., 552 F.3d 934, 939-40 (9th Cir. 2008) (stating, in denying motion to dismiss, that 

“‘fruit juice and other all natural ingredients’ could easily be interpreted by consumers as a claim 

that all the ingredients in the product were natural” and rejecting the argument that a list of 

ingredients on the same box would dispel this impression); Bohac v. Gen. Mills, Inc., 2014 WL 

1266848, at *6 (N.D. Cal. Mar. 26, 2014) (in rejecting motion to dismiss, concluding that “all 

natural” conveys “the affirmative and specific factual representation that the products are made 

entirely of natural ingredients”).

 7 California Naturel’s unsupported claim that its customers “praise [its] disclosure and transparency,” Answer at 5, is 

inadmissible hearsay that lacks any indicia of reliability. See 16 C.F.R. § 3.43(b). 
7

We consider next whether California Naturel’s “all natural” claims are false or 

misleading. The central question is whether the claim is likely to mislead; Complaint Counsel 

need not prove actual deception. See, e.g., Jerk, LLC, 2015 WL 1518891, at *10 (F.T.C. Mar. 

13, 2015). Moreover, “[t]he deception need not be made with intent to deceive; it is enough that 

the representations or practices were likely to mislead consumers acting reasonably.” FTC v. 

Verity Int’l, Ltd., 443 F.3d 48, 63 (2d Cir. 2006) (citation omitted). Accordingly, “[a]n 

advertiser’s good faith does not immunize it from responsibility for its misrepresentations . . . .” 

Chrysler Corp. v. FTC, 561 F.2d 357, 363 n.5 (D.C. Cir. 1977). 

In its answer and in opposition to Complaint Counsel’s motion, California Naturel admits 

that its sunscreen formula consists of eight percent dimethicone and that dimethicone is a 

synthetic material. These two admissions, Complaint Counsel argue, establish that California 

Naturel’s “all natural” claims are false or misleading. We agree.

It is undisputed that California Naturel’s sunscreen contains eight percent of a synthetic 

ingredient. California Naturel nonetheless asserts that its policy is to list all ingredients and thus 

to be “transparent.” However, Complaint Counsel need not demonstrate an intent to deceive. 

See, e.g., FTC v. Freecom Commc’ns, Inc., 401 F.3d 1192, 1202 (10th Cir. 2005) (“[I]ntent to 

deceive . . . is not an element of a [Section] 5 violation.”). California Naturel also argues that 

there is no regulatory definition that specifies the percentage of natural ingredients required in 

order to describe a product as “natural.” While true, this argument misses the mark.8

 California 

Naturel does not merely claim that its product is “natural”; it expressly asserts that its sunscreen 

is “all natural” and that it “uses only the purest, most luxurious and effective ingredients found in 

nature.” By California Naturel’s own admission, that is not true. 

Finally, we consider whether California Naturel’s false and misleading claim is material. 

A “material” misrepresentation is one that is likely to affect a consumer’s conduct with respect to 

the product or service. Deception Statement, 103 F.T.C. at 182. “[T]he Commission presumes 

that express claims are material.” Id. As noted in the Deception Statement, the Commission 

“may assume that the willingness of a business to promote its products reflects a belief that 

consumers are interested in the advertising.” Id. (internal quotations omitted). In turn, a

respondent may rebut a presumption of materiality by providing evidence that the claim is not 

material. Novartis Corp., 127 F.T.C. 580, 686 (1999). 

Here, California Naturel’s “all natural” representation for Sunscreen SPF 30 is express

and therefore presumptively material. California Naturel does not provide any evidence to rebut 

this presumption. Accordingly, we find that California Naturel’s “all natural” claim is false and 

misleading, and likely to affect a consumer’s purchasing decision in violation of Sections 5 and 

12 of the FTC Act. 

 8 The Commission’s Green Guides do not provide guidance on the term “natural.” However, our guidance is clear 

that “marketers must identify all express and implied claims that the advertisement reasonably conveys” and “ensure 

that all reasonable interpretations of their claims are truthful . . . .” 77 Fed. Reg. 62125 (2012). 
8

III. Remedy

Having found liability, we now turn to the issue of the remedy. The FTC Act authorizes 

the Commission to issue an order requiring a respondent to cease and desist the deceptive acts or 

practices. 15 U.S.C. § 45(b). Importantly, “[t]he Commission is not limited to prohibiting the 

illegal practice in the precise form in which it is found to have existed in the past.’” FTC v. 

Colgate-Palmolive Co., 380 U.S. 374, 392, 395 (1965). The Commission may “frame its order 

broadly enough to prevent respondents from engaging in similarly illegal practices in [the] 

future.” Id. at 395. We have the authority to issue orders “encompassing all products or all 

products in a broad category, based on violations involving only a single product or group of 

products.” ITT Continental Baking Co. v. FTC, 532 F.2d 207, 223 (2d Cir. 1976); see also 

Colgate-Palmolive, 380 U.S. at 394-95. 

We enter the accompanying Final Order to address California Naturel’s unlawful 

conduct. The core substantive provision of the Final Order, Part I, prohibits California Naturel

from making the kinds of misrepresentations alleged in the complaint. In particular, California 

Naturel is prohibited from misrepresenting (a) whether a product is all natural or 100% natural;

(b) the extent to which a product contains any natural or synthetic ingredient; (c) the ingredients 

or composition of a product; and (d) the product’s environmental or health benefits. To ensure 

that representations about ingredients are not misleading, California Naturel must have

competent and reliable evidence supporting its claims about the content and ingredients of the 

product.

“Fencing-in provisions serve to ‘close all roads to the prohibited goal, so that (the FTC’s) 

order may not be by-passed with impunity.’” Litton Indus., Inc. v. FTC, 676 F.2d 364, 370 (9th 

Cir. 1982) (quoting FTC v. Ruberoid Co., 343 U.S. 470, 473 (1952)). When determining 

whether an order is reasonably related to the unlawful practices so as to extend the order 

provisions beyond the specific products for which the challenged claims were made, the 

Commission considers “(1) the seriousness and deliberateness of the violation; (2) the ease with 

which the violative claim may be transferred to other products; and (3) whether the respondent 

has a history of prior violations.” Stouffer Foods Corp., 118 F.T.C. 746, 811 (1994); see also 

Telebrands Corp v. FTC., 457 F.3d 354, 358 (4th Cir. 2006); Kraft, 970 F.2d at 326. “The 

reasonable relationship analysis operates on a sliding scale – any one factor’s importance varies 

depending on the extent to which the others are found. . . . All three factors need not be present 

for a reasonable relationship to exist.” Telebrands, 457 F.3d at 358-59. 

We first consider the seriousness and deliberateness of the violation. California Naturel’s 

express representations marketing its sunscreen as an “all natural” product despite containing 

eight percent dimethicone suggest deliberate action. See Stouffer Foods, 118 F.T.C. at 812. 

Even after the company learned of the FTC’s concerns and added language to its website in 2016 

disclosing that dimethicone is a synthetic ingredient, California Naturel continued to claim that 

Sunscreen SPF 30 is “all natural.” See ECM BioFilms, 2015 WL 6384951, at *65 (“awareness 

of concern” and a “calculated choice” of revised marketing that conveyed “essentially the same” 

claims suggests deliberateness of conduct); see also Stouffer Foods, 118 F.T.C. at 813-14

(awareness of inappropriateness of claim and that wording was ‘a delicate matter’ suggests 

deliberateness of conduct that supports fencing-in). Next, we examine the ease with which 
9

California Naturel’s claims may be transferred from its Sunscreen SPF 30 to other products. 

There is no question that California Naturel could readily assert similar “all natural” claims to 

advertise other products it markets. See FTC v. Colgate-Palmolive, 380 U.S. 374, 394-95

(1965); Sears, Roebuck & Co. v. FTC, 676 F.2d 385, 392, 394-95 (9th Cir. 1982); POM 

Wonderful, 2013 WL 268926, at *64. Finally, although the limited record in this case does not 

show that California Naturel has a history of prior violations, the other two factors weigh in 

favor of restraining the company’s conduct in the future. We therefore conclude that the 

prohibited misrepresentations described in Part I of the Final Order bear a reasonable 

relationship to California Naturel’s violations of the FTC Act. 

California Naturel argues that an order is unnecessary in light of the addition of the

disclaimer on California Naturel’s website and because California Naturel allegedly no longer 

sells Sunscreen SPF 30. For the reasons discussed above, we find California Naturel’s 

disclaimer inadequate to render its “all natural” claim truthful and non-misleading. Moreover, 

California Naturel has not provided any evidence to support its assertion that it has stopped 

selling Sunscreen SPF 30. In any event, even if we accept that these sales have ceased, the 

Commission has authority to enter an order where “the challenged practices have been 

voluntarily abandoned or revised.” Am. Home Prods. Corp., 98 F.T.C. 136, 406 (1981); Fedders 

Corp. v. FTC, 529 F.2d 1398, 1403 (2d Cir. 1976) (“The fact that [the advertiser] may have 

discontinued the offending practice before the Commission issued the complaint . . . does not bar 

a cease-and-desist order, where the public interest otherwise requires it.”), aff’d, 695 F.2d 681 

(3d Cir. 1982); Libbey-Owens-Ford Glass Co. v. FTC, 352 F.2d 415, 418 (6th Cir. 1965). An 

order is appropriate when, as is the case here, a respondent could resume sales of the product in 

question in the future. See United States v. Bldg. Inspector of Am., Inc., 894 F. Supp. 507, 521 

(D. Mass. 1995) (finding injunction appropriate when company had ceased operation but 

“remains a going concern and could resume at any time”). 

Finally, Parts II-V of the Final Order impose certain record-keeping, notification, and

reporting requirements, and properly serve to facilitate administration of the order. See FTC v. 

Direct Mktg. Concepts, Inc., 648 F. Supp. 2d 202, 213 (D. Mass. 2009) (“Courts have also 

included monitoring provisions in final orders in FTC cases to ensure compliance with 

permanent injunctions.”); FTC v. Think Achievement Corp., 144 F. Supp. 2d 1013, 1018 (N.D. 

Ind. 2000) (ordering record retention, notification of changed employment or residence, access to 

premises, and monitoring); FTC v. US Sales Corp., 785 F. Supp. 737, 753 (N.D. Ill 1992) (“The 

order should also require Defendants to report their addresses and places of employment or 

business, and any subsequent changes in this information to the F.T.C.”). Part VI provides that 

the Final Order will terminate in twenty years. See US Sales Corp., 785 F. Supp. at 754 

(recognizing that “a sustained period of monitoring by the F.T.C.” may be needed “to ensure 

adequate compliance”).

IV. Conclusion

For the reasons explained above, we have concluded as a matter of law that California 

Naturel’s “all natural” claims are false and misleading and violate Sections 5 and 12 of the FTC 

Act. Accordingly, we issue the accompanying Final Order.

Date of Decision: December 5, 2016
Attachment A
11

Attachment B