PUBLIC DOCUMENT 

California Naturel's Opposition Creates No Genuine Disputes as to Material Facts Which 

Need to be Resolved at Trial 

Commission Rule 3.24(a)(3), 16 C.F.R. § 3.24(a)(3), could not be more clear: "a party 

opposing the motion [for summary decision] may not rest upon the mere allegations or denials of 

his or her pleading; the response, by affidavits ... ,

2 must set forth specific facts showing that 

there is a genuine issue of material fact for trial. If no such response is filed, summary decision, 

if appropriate, shall be rendered." Id. Any affidavits " shall set forth such facts as would be 

admissible in evidence and shall show affirmatively that the affiant is competent to testify to the 

matters stated therein." Id. Additionally, the party opposing summary decision "shall include a 

separate and concise statement of those materials facts as to which the opposing party contends 

there exists a genuine issue for trial." Commission Rule 3.24(a)(2), 16 C.F.R. § 3.24(a)(2). 

California Naturel's two-page Opposition is a letter directed to the Administrative Law 

Judge that merely "rest[s] upon the mere allegations ... of [its] pleading." It is not an affidavit, 

nor is it supported by admissible evidence. California Nature! also failed to submit any counterstatement of material facts that create genuine issues for trial. This is not surprising given 

California Naturel admits to all of the relevant facts material to this Summary Decision Motion. 

Beyond Lacking an Appropriate Foundation to Create Any Genuine Factual Disputes. California 

Naturel's "Substantive" Defenses are Baseless 

Rather than challenge the substance of the Complaint or the instant Motion, California 

Nature} makes three legally irrelevant arguments. 

First, the Opposition asserts that the Complaint addresses an "outdated" 2015 website and 

that it revised the website in early 2016 to address the FTC's allegations. However, the cessation 

2 In addition to using affidavits, a party can oppose a motion for summary decision using 

depositions or other discovery materials. Commission Rule 3.24(a)(4), 16 C.F.R. § 3.24(a)(4). 

No such materials exist in this matter. 

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PUBLIC DOCUMENT 

of an unlawful practice is not a defense, nor does it preclude the issuance of an order, if there is a 

possibility ofrecurrence. Allee v. Medrano, 416 U.S. 802 (1974); Fedders Corp. v. FI'C, 529 

F.2d 1398, 1403 (2d Cir.), cert denied, 429 U.S. 818 (1976). Notably, however, California 

Naturel: (I) does not dispute that the 2015 webpage misrepresented the Sunscreen as "all 

natural;" and (2) does not provide any evidence that its current webpage no longer makes 

deceptive representations concerning the Sunscreen. 

While Complaint Counsel need not show continuing violations of the FTC Act after 2015 

for the Commission to issue the order sought here, the Commission could take official notice that 

California Naturel continues to maintain a product webpage for its Sunscreen.3 At the very top 

of both its home webpage and its Sunscreen product webpage, it continues to make a prominent 

"all natural" claim.

4 This recalcitrance suggests that only the issuance of an order can compel 

California Naturel's compliance with the FTC Act. At a minimum, California Nature! has failed 

to show that its violations will not persist or resume absent the issuance of an order. See FI'C v. 

American Std Credit Sys., 874 F. Supp. 1080, 1087 (C.D. Cal. 1994) (Defendants failed to show 

there is no possibility that the alleged violations will recur). 

Second, the Opposition also appears to contend that a reasonable consumer could 

determine the falsity of the "all natural" representations by researching the issue. In support of 

this contention, California Naturel refers to commentary by a Wall Street Journal reporter who 

3 The website is available athttp://www.californianaturel.com/sunscreen-spf-30. Judicial notice 

is possible here because the content of California Nature!' s webpage is "capable of accurate and 

ready determination by resort to sources [here, California Naturel's publicly available webpage] 

whose accuracy cannot reasonably be questioned." Rule 3.43(f), 16 C.F.R. § 3.43(±). 

4 At the bottom of the webpage, below the visible portion of the screen and after the consumer 

purchase button, California Naturel 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." This statement is wholly inadequate based on its placement at the bottom of 

the webpage not in close proximity to the "all natural" claim near the top of the page. 

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visited the website. The reporter supposedly read on the website that the Sunscreen contains 

"Dimethicone" and determined, after conducting "three minutes" of research, that Dimethicone 

is a synthetic ingredient. Even if true, the reporter must have seen the website after California 

Naturel revised it in early 2016 by adding a statement that the Sunscreen contains the synthetic 

ingredient Dimethicone. Furthermore, the reporter's comments are hearsay and California 

Nature! has not showed that they are admissible under Rule 3.43(b). 

Assuming, arguendo, that the reporter's statements are accurate, admissible, and legally 

relevant, a reporter seeking to determine if any of the ingredients in the Sunscreen are synthetic 

does not mean that most consumers would do the same. Indeed, consumer reliance on express 

and unqualified claims such as the "all natural" claim made by California Nature! is 

presumptively reasonable, and it is reasonable to interpret such statements as intending to say 

exactly what they say. FTC v. Int 'l Computer Concepts, Inc. , 1994 WL 730144 at * 12 (N. D. 

Ohio 1994), citing Thompson Medical Co., 104 F.T.C. 648, 788 (1984), ajfd on other grounds, 

791F.2d189 (D.C.Cir.1986), cert. denied, 479 U.S. 1086 (1986); and FTC v. Skybiz.com, Inc., 

2001 WL 1673645 at *9 (N.D. Okla. 2001) (It is reasonable to expect that consumers could rely 

on the express claims of the representatives of the SkyBiz Program, citing FTC v. Five-Star Auto 

Club, Inc., 97 F.Supp.2d 502, 528 (S.D.N .Y.2000)). The fact that one non-consumer was able to 

conduct research to uncover the truth does not rebut the presumption of reliance. FTC v. 

Bluehippo Funding, LLC, 762 F.3d 238 at 246 (2d Cir. 2014) (defendants have opportunity to 

rebut the presumption of consumer reliance by introducing evidence that individual consumers 

not misled or injured). 

Third, California Nature! suggests the relief sought here is not appropriate or necessary 

because it no longer sells its Sunscreen due to "bad publicity" resulting from the Complaint. 

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PUBLIC DOCUMENT 

However, California Nature! provides no evidence it has stopped sales. Even if this assertion 

were true, granting Summary Decision and issuing an order would still be appropriate to deter 

future consumer deception. Complaint Counsel has established that California Naturel made 

deceptive representations concerning its Sunscreen in violation of Section 5(a) of the FTC Act 

and disseminated false advertisements in violation of Section 12 of the FTC Act. California 

Nature! only revised its webpage after Commission staff advised it that the "all natural" claim 

was deceptive and, even then, its revisions did not bring it into compliance with the requirements 

of the FTC Act. This failure only underscores the necessity for the Commission to issue an order 

crafted to prevent future deception. Indeed, courts have upheld orders prohibiting conduct that 

ceased well before the initiation of an FTC enforcement action. See C. Howard Hunt Pen Co. v. 

FTC, 197 F.2d 273 (3d Cir. 1952); and Spencer Gifts Inc. v. FTC, 302 F.2d 267 (3d Cir. 1962). 

For the reasons set forth in its original motion papers and above, Complaint Counsel 

respectfully requests that the Commission grant this Motion for Summary Decision and issue an 

Order against Respondent California Naturel, Inc. 

Dated: October 5, 2016 

5 

Respectfully submitted, 

Robert M. Frisby (202) 326-2098 

John Andrew Singer (202) 326-3234 

Division of Enforcement 

Bureau of Consumer Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mailstop CC-9528 

Washington, DC 20580 
Notice of Electronic Service

I hereby certify that on October 05, 2016, I filed an electronic copy of the foregoing Complaint Counsel's Reply

to Respondent's Opposition to Motion for Summary Decision, with:

D. Michael Chappell

Chief Administrative Law Judge

600 Pennsylvania Ave., NW

Suite 110

Washington, DC, 20580

Donald Clark

600 Pennsylvania Ave., NW

Suite 172

Washington, DC, 20580

I hereby certify that on October 05, 2016, I served via E-Service an electronic copy of the foregoing Complaint

Counsel's Reply to Respondent's Opposition to Motion for Summary Decision, upon:

Robert Frisby

Attorney

Federal Trade Commission

rfrisby@ftc.gov

Complaint

John Singer

Attorney

Federal Trade Commission

jsinger@ftc.gov

Complaint

I hereby certify that on October 05, 2016, I served via other means, as provided in 4.4(b) of the foregoing

Complaint Counsel's Reply to Respondent's Opposition to Motion for Summary Decision, upon:

john bernard duler

president

california natural

jbduler@californianaturel.com

Respondent

Robert Frisby

Attorney