New York attorney general sues tanning firms, companies respond

New York Attorney General Eric Schneiderman is suing the company that operates Total Tan, accusing the franchise of “unlawfully concealing indoor tanning risks.”

In response, Total Tan filed a complaint against Schneiderman’s office, accusing it of using an investigator whose husband previously worked for the tanning firm but lost his job.

Besides Total Tan, Schneiderman’s office also sent a notice of intent to sue Newington, New Hampshire–based Planet Fitness, which operates 101 gyms with tanning services in New York state.

Schneiderman’s office announced the actions in a news release issued on Thursday.

Schneiderman accuses Blasdell, N.Y.–based Total Tan, Inc. of false advertising by “denying or minimizing scientific evidence linking tanning to an increased cancer risk.”

Blasdell is a Buffalo suburb. Total Tan operates 26 retail tanning salons in the Albany, Syracuse, Rochester, Buffalo, and Erie, Pennsylvania areas, according to the news release. The firm’s Syracuse–area salons are in DeWitt, North Syracuse, and Auburn, according to its website.

Schneiderman is also making the same accusations against Portofino Spas, LLC, which operates five tanning salons in Manhattan.

He also accuses that firm of promoting indoor tanning as a safe way to reap the benefits of vitamin D and other “purported” health benefits, Schneiderman’s office said.

The lawsuit also accuses Total Tan of asserting the safety of indoor tanning compared to tanning outdoors.

The lawsuits are part of a “continuing effort to protect consumers from the documented skin-cancer risks of indoor tanning,” Schneiderman’s office contended in its release.

 

Total Tan’s response

In response, the management of Total Tan issued a statement through Rochester–based Harris Beach PLLC, the company’s law firm.

“The Attorney General’s claim that Total Tan produced misleading advertising is not true,” the statement said with the words “not true” written in bold text and underlined.

“We are a small, upstate, family-owned business that refuses to be intimidated by Mr. Schneiderman, who is trying to impose his own view of the world on our industry and the citizens of upstate New York,” Total Tan management said.

The company claims Michael Pepe, a professor of business and marketing at Siena College, provided it with a sworn affidavit “stating that our advertising comports with federal and state law.”

Total Tan also claims it “previously provided this evidence” to the state attorney general.

The company also cited a statement from Pepe about Schneiderman’s assertion about health-related benefits associated with tanning, including vitamin D representation.

 “I did not locate any materials that were misleading or otherwise deceptive as it relates to vitamin D representations,” Pepe said in the Total Tan statement.

The statement also included a summary of Pepe’s assessment of Total Tan advertising.

“Based on my experience and knowledge in business advertising, it is my expert opinion that the Total Tan advertisements and materials are consistent with acceptable industry practices and regulatory guidelines and the Total Tan advertisements and materials are not misleading or improper,” Pepe said.

The statement goes on to say that Total Tan’s “independent assessment” of the matter uncovered that Schneiderman’s lead investigator on the case, Judy Gentry Smith, is “the spouse of a former Total Tan employee” who had been “released from employment.”

Smith’s husband, Gary Smith, who had previously served as vice president of operations for Total Tan, had been “terminated,” according to a letter that Harris Beach attorney Brian Mahoney wrote to the Joint Commission on Public Ethics (JCOPE).

Mahoney’s November 2013 letter to JCOPE was “an official complaint,” according to the Total Tan statement.

That investigation is ongoing, it added.

Mahoney filed the complaint after bringing the matter to the attention of Schneiderman, “who cavalierly dismissed the issue.”

“If [Schneiderman] ignores the facts and continues to pursue Total Tan, we will vigorously defend ourselves and will not be bullied by the likes of Mr. Schneiderman,” the Total Tan statement concluded.

 

Planet Fitness

Besides the Total Tan lawsuit, Schneiderman’s office also sent Planet Fitness a notice of intent to sue for “violations of state tanning laws, including failure to provide required warnings to consumers,” according to the news release.

The notice said Planet Fitness offered inexpensive, monthly “unlimited” tanning-bed access, with “little oversight on member usage, and violated the disclosure and safety requirements of New York state tanning laws,” according to Schneiderman’s news release.

Planet Fitness provided CNYBJ an email response indicating it is “aware of the notice.”

Schneiderman’s office in April and May of 2013 found that five of the approximately 80 locations in New York at the time “were allegedly in violation of certain laws related to tanning services,” McCall Gosselin, Planet Fitness spokeswoman, said in the statement.

“Since being notified of these alleged violations, Planet Fitness corporate headquarters has worked closely with all franchisees to emphasize the importance of following all applicable state laws. Additionally, over the last year, Planet Fitness has been working with the Office of the Attorney General with regard to this matter, and we look forward to the opportunity to continue to work with their office in mutual good faith to reach a resolution,” Gosselin said.

 

Contact Reinhardt at ereinhardt@cnybj.com