A.G. Schneiderman Announces Lawsuits Accusing Two NYC & Upstate Tanning Salon Companies Of Unlawfully Concealing Indoor Tanning Risks

NEW YORK— Attorney General Eric T. Schneiderman today filed lawsuits against Portofino Spas, LLC (“Portofino”) and Total Tan, Inc., accusing both franchises of false advertising by denying or minimizing scientific evidence linking tanning to an increased cancer risk; promoting indoor tanning as a safe way to reap the benefits of vitamin D and other purported health benefits; and asserting the safety of indoor tanning compared to tanning outdoors. Portofino operates five retail tanning salons across Manhattan. Total Tan operates 26 retail tanning salons in Albany, Buffalo, Erie, Rochester, and Syracuse.

Today’s lawsuits are part of a continuing effort to protect consumers from the documented skin cancer risks of indoor tanning. The Attorney General today sent a notice of intent to bring a similar action against Beach Bum Tanning Salons, which has 14 locations in New York City and on Long Island, for its misleading representations about the healthfulness of indoor tanning. The Attorney General also sent a notice of intent to Planet Fitness, which operates 101 gyms with tanning services statewide, for violations of the New York State tanning laws, including failure to provide required warnings to consumers.

“Make no mistake about it: There is nothing safe about indoor tanning. The use of ultra-violet devices increases exposure to cancer-causing radiation and puts millions of Americans in serious danger – young adults, in particular,” said Attorney General Schneiderman. “Irresponsible businesses that seek to rake in profits by misleading the public about the safety of their services will be held accountable by my office. Advertising and marketing cannot be used as a tool to confuse and endanger New York consumers.”

Over the past decade, scientific evidence has clearly documented the harms of indoor tanning. By 2009, the World Health Organization added indoor tanning to its list of most dangerous forms of cancer-causing radiation and placed it in the highest cancer risk category: “carcinogenic to humans,” the same category as tobacco. Even more recently, in July 2014, the U.S. Surgeon General issued a “Call to Action To Prevent Skin Cancer,” a report documenting the rise in skin cancers and outlining action steps to prevent these cancers going forward, including reduction of intentional, and unnecessary, ultraviolet (UV) light exposure for the purpose of tanning.

Indoor tanning increases the risk of melanoma, the deadliest form of skin cancer – which is responsible for 9,000 deaths in the United States each year.  Indoor tanning also increases the risk of other skin cancers (e.g. basal cell carcinoma and squamous cell carcinoma).  While usually not fatal, these cancers can cause noticeable disfigurement. In addition to increasing the risk of skin cancer, UV exposure can also harm the immune system and cause premature skin aging.

Every year, approximately 3,500 New Yorkers are diagnosed with melanoma and another 100,000 are diagnosed with basal or squamous cell carcinoma. Skin cancers not only cause illness and death, but also cost about $8.1 billion to treat in the United States each year. Lost workdays and restricted activity days add to the costs of those illnesses.

New York law currently prohibits tanning for children under 17 and requires parental consent for children between the ages of 17 and 18.

Additionally, New York law requires that warning signs be posted outside of tanning beds, that tanning hazards information sheets and acknowledgement forms be distributed to tanning patrons, and that free protective eyewear be made available to tanning patrons. The Attorney General’s lawsuit alleges that Portofino did not post the required state warning sign near every tanning devices as required by the law and that total tan required patrons pay for protective eyewear when the eyewear is required to be provided without cost to consumers.

In the face of the scientific evidence linking indoor tanning and early onset of skin cancer, some indoor tanning salon businesses have sought to counter the scientific evidence by purposefully advertising the opposite message – that indoor tanning actually improves health. For example, the complaint alleges that Portofino and Total Tan made various statements on their websites and through social media channels, including:

Portofino

• “There actually is no clear direct experimental evidence showing a causative mechanism between tanning and melanoma. Even the American Academy of Dermatology admits this.”
• “Conflicting data exist questioning the UV-melanoma relationship. Some independent dermatology researchers question whether UV and melanoma are related at all.” 
• “Indoor tanning is an excellent, reliable source of Vitamin D. During a typical tanning session your body naturally creates as much Vitamin D as you would get from drinking 100 glasses of milk or eating 25 servings of salmon.”

Total Tan

• A testimonial from “cancer survivor Kurt Hollis” where he asserted to have treated his kidney cancer by tanning at Total Tan.
• “Tanning Fact! A Tanning unit can produce as much Vitamin D as drinking 100 glasses of milk! Wow!!!”
• Claims that vitamin D from indoor tanning will assist in either treatment or prevention of an array of serious diseases including cancer, heart disease, asthma, high blood pressure, diabetes, and blood clots.

In addition to the two tanning salons that are the subjects of the Attorney General’s lawsuits, the Attorney General sent notices of intent to sue to BBT Retail, Inc. and Salon Management, Inc, LLC, which owns Beach Bum Tanning Salons, and Planet Fitness. Beach Bum, similar to Total Tans and Portofino, has allegedly made a series of misleading statements downplaying the documented skin cancer risks of tanning. Beach Bum also allegedly misrepresented the healthfulness of indoor tanning, including claiming that tanning appears to retard or prevent many forms of cancer such as breast, colon, prostate and ovarian tumors. According to the notice, Planet Fitness, best known as a fitness center, 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.

To help educate the public and raise awareness of the harms associated with indoor tanning, the Attorney General’s office has today released a brochure on indoor tanning safety. The brochure provides important information on the risks and harms associated with UV tanning. The Attorney General’s office has also made available to the public the “Expert Report” it used in its lawsuits. The Expert Report was prepared by four leading public health experts and serves to document the harms of indoor tanning while refuting any of the salons’ health claims, since the experts can find no scientific evidence to support the salons’ claims.

The actions announced today are simply the next step in a series of steps taken by the Attorney General. In 2013, the Attorney General launched an investigation into suspected misleading advertising in the indoor tanning salon industry. In March of 2014, as part of that investigation, settlements were reached with HT Franchising Management LLC, the franchisor of the Hollywood Tans salons, and Hollywood Tans NYC, a Manhattan-based franchise of the national chain, requiring them to stop making health-related representations to promote tanning services.

In August 2013, the Attorney General submitted comments to the Food and Drug Administration supporting a proposed agency order that would provide important protections for consumers and new warnings on UV radiation tanning beds and other sunlamp devices. A copy of the FDA letter is available here. The FDA’s final order became effective in September 2014, strengthening protections for consumers by requiring manufacturers to place additional performance and safety controls on sunlamp products, and to include contraindication statements and warnings.

The Portofino lawsuit is being handled by the Health Care Bureau’s Assistant Attorney General Brant Campbell together with the Health Care Bureau’s Assistant Attorney General Elizabeth Chesler and the Consumer Fraud and Protection Bureau’s Assistant Attorney General Kate Matuschak. In addition, Robert Pompey-Goodman, from the Investigations Bureau assisted with the Portofino matter. The Total Tan lawsuit is being handled by the Environmental Protection Bureau’s Kathryn DeLuca. Environmental Scientist Charles Silver, Ph.D. of the Environmental Protection Bureau provided additional scientific and research support in development of the tanning investigation and the lawsuits. The Beach Bum and Planet Fitness matters are being handled by Ellen Fried, Assistant Attorney General in the Consumer Fraud and Protection Bureau.  The Health Care Bureau is led by Lisa Landau, the Consumer Frauds and Protection Bureau is led by Jane Azia, and the Environmental Protection Bureau is led by Lemuel Srolovic. The Health Care and Environmental Protection Bureaus are in the Division of Social Justice led by Executive Deputy Attorney General Alvin Bragg. The Consumer Frauds and Protection Bureau is in the Division of Economic Justice led by Executive Attorney General Karla G. Sanchez.

Consumers with questions or concerns about health care matters may call the Attorney General’s Health Care Bureau Helpline at 1-800-428-9071.