1

Statement of Commissioner Maureen K. Ohlhausen

Concurring in Part and Dissenting in Part

In the Matter of California Naturel, Inc.

Docket No. 9370

December 5, 2016

This matter is before us on a motion for summary decision filed by complaint counsel and 

opposed by California Naturel. When deciding such a motion, we resolve all factual ambiguities 

and draw all justifiable inferences in the light most favorable to the party opposing the motion. 

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). 

Prior to early 2016, California Naturel expressly marketed its sunscreen as an “all natural” 

product and stated that it “uses only the purest, most luxurious and effective ingredients found in 

nature.” The company does not dispute that it made these claims and admits that its sunscreen 

contained a substantial amount (eight percent) of a synthetic ingredient, dimethicone. Based on 

these undisputed facts, I agree with my colleagues that those unqualified “all natural” claims 

were false and misleading in violation of Sections 5 and 12 of the FTC Act at the time they were 

made. I also agree that 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). Thus, I would grant summary judgment and impose a 

remedial order solely on this basis.1

 

I do not support, however, the Commission’s grant of summary decision regarding the effect of 

California Naturel’s later-added disclaimer and new product stickers. First, that question is not 

properly before the Commission because it is immaterial to resolving the present motion. See 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Factual disputes that are irrelevant 

or unnecessary will not be counted” in resolving summary-judgment motions.); WRIGHT &

MILLER, 10A FED. PRAC. & PROC. CIV. § 2725.1 (4th ed. 2016) (“[A] factual issue that is not 

necessary to the decision is not material within the meaning of Rule 56(a) and a motion for 

summary judgment may be granted without regard to whether it is in dispute.”). Complaint 

counsel moved for summary decision on the ground that California Naturel violated Sections 5 

and 12 of the FTC Act because “it expressly claimed that its Sunscreen SPF 30 was ‘all natural’” 

and “admitted in a submission to the Commission on May 6, 2016, that its Sunscreen SPF 30 

formula contains 8% Dimethicone, a synthetic ingredient.” MSD, p. 1. We can—and do—grant 

summary decision on that basis. It is irrelevant to the pending motion whether California Naturel 

subsequently disclosed to consumers that the product contains eight percent of a synthetic 

ingredient. 

Further, the question whether California Naturel’s subsequent disclaimers and product stickers

provided adequate disclosure would be a fact question that the Commission should not resolve 

on summary decision. Some courts have granted summary judgment in matters where 

disclaimers were in fine print and distant from the challenged claims. See, e.g., FTC v. 

Cyberspace.com, LLC, 453 F.3d 1196 (2006). But other courts have denied summary judgment 

where there is a genuinely disputed factual issue about whether disclaimers are prominent and 

 1 I support the fencing-in relief based on the ease with which California Naturel’s claims may be transferred from its 

Sunscreen SPF 30 to other products.
2

easily visible. See, e.g., FTC v. Dalbey, No. 11-cv-1396, 2013 WL 934986 (D. Colo. Mar. 11, 

2013). As noted above, the standard for summary decision requires us to resolve all factual 

ambiguities and draw all justifiable inferences in the light most favorable to California Naturel, 

the party opposing the motion. Given this standard and the facts as presented, I believe the 

question of whether the later-added disclosure and new product stickers adequately qualified the 

“all natural” claim is a genuinely disputed material fact and thus not appropriate for summary 

decision in this matter. 

For those reasons, I dissent on that portion of the Commission opinion.