Attorney General Reaches Agreement with Planet Fitness. “Tan at your own risk,” Press Release Implies

WPCNR WHITE PLAINS LAW JOURNAL. From the Office of the Attorney General of the State of New York. November 25, 2015:

Attorney General Eric T. Schneiderman today announced that his office has reached an agreement with Planet Fitness Holdings LLC, and its subsidiaries, Pla-Fit Franchise, LLC, franchisor of Planet Fitness brand fitness facilities and Planet Fitness National Advertising Fund, LLC, (collectively “Planet Fitness”) requiring that they not offer “unlimited” tanning as part of premier Black Card level memberships and that they provide adequate training to employees who oversee indoor tanning services at Planet Fitness gym locations.

Planet Fitness also agreed not to make health-related claims to promote red lamp devices and to comply with all New York State tanning regulations.   Planet Fitness paid $50,000 in costs and penalties.

“Under today’s agreement with Planet Fitness, the company will no longer offer unlimited tanning as part of its health club benefits and will not make any claims regarding the health or safety of indoor tanning,” said Attorney General Schneiderman. “This agreement is part of a continuing effort to protect consumers from the documented skin cancer risks of indoor tanning. I am especially concerned with rising cancer rates associated with indoor tanning, particularly for young people, and businesses that offer indoor tanning should market their services truthfully.”

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 such as 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.  New York State tanning 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 current tanning hazards information sheets and acknowledgement forms be distributed to tanning patrons and that free protective eyewear be made available to tanning patrons.

Investigators visited a number of Planet Fitness franchise locations that offer tanning services and found numerous violations of New York State tanning laws, including failure to provide required warnings and acknowledgment forms to consumers and failure to provide protective eyewear at no additional cost, a public health hazard. There are approximately 98 Planet Fitness locations currently operating in New York State, with some under corporate ownership and the majority owned by independent franchisees.

Some Planet Fitness locations offered LED or red light Beauty Angel treatments that were advertised as providing various health related benefits.  However, these red lamp devices are approved by FDA only for cosmetic purposes.  Planet Fitness and its franchised locations ceased promoting red lights for medical or health benefits upon notice by the Attorney General of its potentially false and misleading advertising of these services.

Planet Fitness also ceased the promotion of Black Card trial membership upgrades and Black Card memberships to include unlimited use of “free” and “unlimited” tanning services to members of legal tanning age during the course of this investigation.  These promotions may imply that frequent indoor tanning is safe and may encourage more frequent indoor tanning

While Planet Fitness does not advertise or promote health-related benefits of indoor tanning, the investigation uncovered that Planet Fitness did not require or provide training of its employees in any Planet Fitness locations beyond the operation of UV devices and sanitizing procedures for tanning beds. Nor did Planet Fitness provide independent third-party training programs regarding safety precautions and procedures to employees of corporately owned locations.

Under the settlement, Planet Fitness will adopt written training procedures for employees of corporate locations that emphasize, among other requirements, the operation of tanning equipment in a manner adequate to protect consumers from potential overexposure and other hazards related to indoor tanning and making any representations about the safety of indoor tanning.  Planet Fitness will emphasize to franchisees the importance of their compliance with these employee training procedures.

The action announced Tuesday is one of a number of steps taken by the Attorney General to help educate the public and raise awareness of the harms associated with indoor tanning. The Attorney General’s office has released a brochure on indoor tanning safety  that provides important information on the risks and harms associated with UV tanning.  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.

In 2013, the Attorney General launched an investigation into suspected misleading advertising in the indoor tanning salon industry.  The Attorney General reached settlements in March 2014 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.  The Attorney General also has two  lawsuits  currently pending against Portofino Spas, LLC (“Portofino”) and Total Tan, Inc., alleging that both franchises engaged in 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 that indoor tanning is safer than tanning outdoors.  In addition, Total Tan is accused of violating New York indoor tanning laws.

The Planet Fitness settlement was handled by Assistant Attorney General Ellen Fried and Bureau Chief Jane M. Azia, of the Consumer Frauds and Protection Bureau, and Executive Deputy Attorney General for Economic Justice Karla G. Sanchez.  The tanning salon investigations and litigation are being handled by the Consumer Frauds Bureau, the Health Care Bureau and the Environmental Protection Bureau.  The Health Care Bureau is led by Lisa Landau 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.

 

 

Consumers with questions or concerns about health care matters may call the Attorney General’s Health Care Bureau Helpline at 1-800-428-9071.  Consumers with complaints about other consumer matters can file a complaint online or call the Attorney General’s consumer helpline at 1-800-771-7755.

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