Are artificial tans the new cigarette? How plaintiffs can use the lessons of tobacco litigation in bringing claims against the indoor tanning industry.

• Date: 01 November 2008
• Author: Loh, Andrea Y.

Indoor tanning salons have grown significantly in popularity during recent years. Scientific research has revealed a strong link between skin cancer and ultraviolet light exposure from indoor tanning lamps. Despite such dangers, federal regulations place minimal restrictions on the labeling of indoor tanning lamps. Indoor tanning salons work vigorously to dispel notions of a link to skin cancer, often falsely promoting various health benefits of indoor tanning. The first lawsuit for injuries resulting from indoor tanning was recently filed against an indoor tanning salon, and other such litigation is poised to follow. This Note examines three potential tort claims against indoor tanning manufacturers and salons, and suggests ways to formulate compelling arguments in each instance. In doing so it draws on cases finding liability in the context of cigarettes, identifying similarities between the indoor tanning and cigarette industries.

TABLE OF CONTENTS INTRODUCTION I. FRAUD CLAIMS A. Lessons from Successful Cigarette Cases B. Application of Lessons to Indoor Tanning Fraud Claims II. FAILURE TO WARN CLAIMS A. Lessons from Successful Cigarette Cases B. Application of Lessons to Indoor Tanning Failure to Warn Claims C. A Failure to Warn Claim Concerning the Intensity of Indoor Tanning UV Rays D. A Failure to Warn Claim Concerning Hidden Health Risks of Indoor Tanning III. DESIGN DEFECT CLAIMS A. Lessons from Successful Cigarette Cases B. Application of Lessons to Indoor Tanning Design Defect Claims CONCLUSION INTRODUCTION

Gone are the days when a fair complexion was desirable because it indicated one's wealth and ability to avoid outdoor manual labor. (1) Today the coveted look is quite the opposite--darkly tanned individuals are perceived to be the healthiest, wealthiest, and most attractive. (2) Some have decided that natural exposure to sunlight is insufficient to meet their needs and instead turn to alternative sources to achieve a year-round tan. One of the most popular choices is the indoor, artificial-light tanning salon. (3) These salons provide individual tanning beds where users expose themselves to high intensities of ultraviolet ("UV") rays in short doses to attain the bronze tone they desire. (4) Since its inception nearly thirty years ago, the tanning salon business has blossomed into a five-billion-dollar-a-year industry with over thirty million indoor tanning salon users nationwide. (5)

Despite the popularity of tanning beds, they present a variety of well-established dangers to users. These include an increased risk of skin cancer, eye damage, premature wrinkling, and skin rashes. (6) Doctors estimate that frequent use of tanning facilities contributes to drastic increases in skin cancer rates, especially among young women. (7) Since 1975, incidence of the most lethal form of skin cancer, melanoma, has doubled in women fifteen to twenty-nine years old. (8) The Food and Drug Administration ("FDA"), (9) the Federal Trade Commission ("FTC"), (10) the American Academy of Dermatology, (11) the Centers for Disease Control and Prevention, (12) the Department of Health and Human Services, (13) the World Health Organization, (14) and the American Medical Association, (15) as well as individual doctors and health care professionals, all recognize that increases in UV exposure, such as those received through the use of indoor tanning beds, "have a damaging effect on the immune system" and cause skin cancer. (16) These organizations and professionals have repeatedly stated that "[t]here's no such thing as a safe tan," and have uniformly discouraged any use of indoor tanning equipment.

In spite of these facts, indoor tanning salon franchisors and operators continue to promote their products as completely safe. Many companies in the industry advertise that indoor tanning does not cause cancer. (18) Tanning websites boast claims such as "Can a Tanning Bed be Safe? Of Course!... Many Doctors are now changing their old, outdated ideas to agree that Sunshine is healthy!" (19) Tanning company representatives vehemently deny a connection between indoor tanning and skin cancer, claiming that no solid proof of a link exists. (20) In fact, tanning companies have taken their denials a step further by making promises about the various health benefits of indoor tanning. (21)

One factor enabling these aggressive advertisements may be the lack of adequate regulations at both the federal and state levels, which in turn allows tanning consumers to be exposed to unnecessary and unreasonable risks. On the federal level, current regulations of manufacturers are somewhat broad, regulating issues such as radiation emissions and mandating only general warning labels. (22) Once artificial tanning machines reach the individual tanning salons, the regulation of operations is largely left to the states. (23) Currently, only twenty-nine states regulate tanning salon operators, and enforcement of the widely differing state provisions is limited and often nonexistent. (24) In addition, many states lack requirements relating to tanning equipment registration, training of salon operators, or equipment usage. (25) This often results in salon operators tampering with lamps post-manufacture to produce greater tanning effects. (26) If they are present at all, state regulations relating to advertising, restrictions on use by minors, and consumer warnings are by no means uniform or universal. (27) As a result, aggressive and questionable advertisements abound, tanning bed misuse occurs frequently, (28) and indoor tanning consumers are subject to dangerous (yet avoidable) risks. (29)

This environment has led to tort litigation against the indoor tanning industry. In 2006, a class action plaintiff brought the first lawsuit of this kind, stating claims against an indoor tanning salon operator ranging from failure to warn consumers of the dangers of indoor tanning to breach of warranty and fraud. (30) Tanning litigation presents unique facts for these familiar claims, and thus raises questions as to how exactly such litigation fits within the established framework of similar tort claims against consumer companies.

Successful litigation against various cigarette companies (31) provides a useful comparison and starting point for formulating persuasive tort claims against indoor tanning salons because the industries share a number of characteristics. (32) Initially, both cigarette smoking and indoor tanning are nonessential, non-food-related acquired behaviors. (33) In both instances, people acknowledge cosmetic or image-related motivations for their use of the product. (34) Additionally, consumption of either of these products at practicable levels has been scientifically proven to cause disease, specifically cancer. (35) When confronted with scientific evidence affirming a link, companies from both industries have fervently denied any connection to disease. (36) Similarly, public health campaigns to educate consumers about each of these products' dangers have proven unsuccessful at eliminating use. (37) Both the cigarette and indoor tanning industries have shown a heightened interest in encouraging youth consumption. (38) Finally, consumers have filed lawsuits against companies producing both products, claiming they were injured as a result of their consumption. (39) The claims are similar in both circumstances and include failure to warn, fraud, and products liability causes of action. (40) The counterarguments to these lawsuits have also followed a similar path, stating that people assume the risks of use from voluntarily consumption, and that no proof exists that consumption causes cancer. (41) Commentators have likewise made comparisons between the cigarette and indoor tanning industries. (42) Although there are no doubt other products that could suitably be compared to indoor tanning, this Note simply draws on the similarities (43) between the cigarette and tanning industries as one way to formulate compelling indoor tanning claims.

This Note analyzes successful cases against the cigarette industry in order to identify the strongest legal arguments for future indoor tanning litigation against tanning salons. Parts I, II, and III begin by examining cigarette cases where plaintiffs succeeded in their fraud, failure to warn, and design defect claims, respectively. Each Part then draws on lessons from these tobacco cases to suggest ways for indoor tanning plaintiffs to formulate persuasive arguments concerning each claim. It concludes that although such tort claim cases will be difficult to win, by using arguments and principles from successful litigation against the cigarette companies, potential plaintiffs can greatly increase their chances of success.

1. FRAUD CLAIMS

   Tanning plaintiffs have a strong potential for success with fraud claims brought against indoor tanning salons. Section I.A first describes the components of a fraud cause of action. It then draws on several cigarette cases as examples of successful fraud claims, focusing on key factors that seemed to increase tobacco plaintiffs' success. Section I.B uses these factors to make suggestions for creating persuasive fraud claims in the indoor tanning context.

   1. Lessons from Successful Cigarette Cases

      Cigarette plaintiffs were successful in their fraud claims because they had evidence of severe levels of tobacco company misconduct. Additionally, the industry executed such behavior on a synchronized and collaborative basis. Though these elements are by no means necessary for a successful fraud claim, such instances provide useful insight for future indoor tanning plaintiffs hoping to prevail on a fraud claim against an indoor tanning salon.

      The exact language of the standard for fraudulent misrepresentation varies state to state, but most states follow the Second Restatement approach:

      One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the...