That smell? It's the sizzle of a lawsuit getting burned to a crisp.

An Illinois woman filed a putative class action against a sunscreen maker because the label on its aerosol can said "shake well" before use, as opposed to "shake vigorously for 10 seconds."

Jenner & Block partners Dean Panos and Richard Steinken made short work of the suit against The Hain Celestial Group Inc., convincing a federal judge in Chicago on Monday to dismiss five counts with prejudice and one without.

Plaintiff Katy Manley said she bought a can of Alba Botanica Very Emollient Mineral Spray SPF 35 Sunscreen for $9.99 from TJ Maxx last year. 

She complained that the label "fails to warn the consumer about either the importance of shaking the product vigorously for at least ten seconds and blending the product well into the skin after spraying it on."

The complaint by Sweetnam LLC in Chicago proceeds to quote multiple negative reviews of the sunscreen on Amazon, such as, "This product goes on like white face paint. Yes, you will look like a ghost" and "Do not buy, unless you enjoy having blobs of sunscreen all over you, your car, your clothes, your kids, and your dog … which doesn't easily wipe off." Other users complained they got sunburned or broke out in a rash.

That doesn't sound very appealing, but how to turn it into a multi-million dollar class action?

When Manley used the product, she said she got severely sunburned. She blamed Hain Celestial for failing to warn "that their sunscreen provided less sun protection than defendant otherwise advertised if not properly applied."

That is, it had to be shaken—and not just "well" but for at least 10 seconds, she claimed. Also—who knew?—you have to rub the lotion into your skin.

"Manley has literally made a federal case out of common sense instructions for sunscreen," the Jenner team wrote in a motion to dismiss. 

U.S. District Judge Jorge Alonso sided with the defense across the board—and seemed to enjoy roasting the complaint. 

Manley claimed that Hain Celestial violated the Illinois Consumer Fraud and Deceptive Trade Practices Act by omitting material facts from the sunscreen label. But as Alonso pointed out, an omission is material only if a buyer would have acted differently knowing the information.

"[P]laintiff must allege she would not have purchased the product had she known she would need to 'SHAKE VIGOROUSLY for ten seconds before using.' She has not so alleged," Alonso wrote.

"Plaintiff's theory seems to be that there is a vast difference between the two directions at issue in this case," he continued. "Plaintiff seems to think that a consumer is willing to purchase a product that requires her to 'SHAKE WELL' but that to require her to 'SHAKE VIGOROUSLY' for ten seconds" is a bridge too far."

Right. Who would buy sunscreen that required 10 entire seconds of shaking? No wonder Hain Celestial kept such damning information off the label.

Alonso—thoughtful jurist that he is—considered another possibility.

"If, as plaintiff alleges, the product works properly only if shaken properly, then defendant had a strong incentive to give clear directions," he noted. "Although surely some products exist that a consumer need purchase only once in her lifetime, sunscreen is not one of those products. Unless the sun stops shining, a person who needs sunscreen will generally continue to need it in the future."

(Ooh a burn from the judge!)

"This means defendant had an incentive to direct consumers accurately as to the necessity of shaking. If consumers have trouble getting the product to perform properly, they will stop buying it. If the product works well, they may keep buying it. After all, the purpose of branding a product is to make it easier for consumers to search for (and continue to purchase) a product."

Glad he cleared that up.

Manley made much of the fact that Hain Celestial later changed the label on another sunscreen product, directing users to shake for 10 seconds.

Alonso was not impressed. "Plaintiff's claim is that whatever daylight exists between the directions defendant gave her ("SHAKE WELL") and what defendant gives now ("SHAKE VIGOROUSLY for ten seconds") constitutes fraud. The court does not agree. The difference between the two directions is, at best, that the first direction is a succinct version of the second, which is to say easier to fit on a label. At worst, the difference is that the first is insufficiently specific, which is not actionable" under the Illinois consumer fraud statute.

The other claims fared no better. Breach of implied warranty got the boot because the defendant and plaintiff are not in privity of contract—she bought the product from TJ Maxx.  

Negligent misrepresentation? No dice. The plaintiff "seeks relief for disappointed commercial expectations: her sunscreen did not perform as she expected, and she wants her money back," Alonso wrote. But per Illinois law under the Moorman doctrine, that's a contract issue, not a tort claim.

The judge also dismissed the unjust enrichment claim with prejudice. 

He did leave the narrowest of openings for breach of express warranty.

The plaintiff pointed to language on Hain Celestial's website that said the sunscreen "helps protect against sunburn." But she never actually said that she saw the statement on the website before she bought the sunscreen. "Thus, plaintiff has failed to allege plausibly that the information on defendant's website was part of the basis of the bargain."

Still, Alonso dismissed the claim without prejudice (though good luck pleading it successfully).

Manley's lawyer, William M. Sweetnam, in an email said, "We filed this lawsuit to protect consumers who purchased the products at issue, and we remain committed to them. We will continue to review the court's decision as we consider all of our options."