Proskauer on Advertising Law
Proskauer on Advertising Law

Accurate Net Weight Disclosures May Defeat Slack-Fill Claims in California

Last April, we reported on Ebner v. Fresh, Inc., in which a Ninth Circuit panel held that the plaintiff failed to state a claim that Sugar lip balm packaging was misleading because it contained non-functional “slack-fill.” Last month, the Ninth Circuit rejected plaintiff’s petition for rehearing en banc but also amended its earlier opinion. Though largely similar, the amended opinion includes new language that may have implications for slack-fill actions going forward.

As our readers may recall, plaintiff Angela Ebner filed a putative class action against Fresh, Inc. alleging that the label, design and packaging of its Sugar lip balms deceived consumers about the amount of available product. Sugar lip balm, which comes in a variety of colors and retails for approximately $22.50–$25 per unit, is sold in a weighty metallic tube dispenser and packaged in a cardboard box. In the original Ninth Circuit opinion, the panel held that the non-functional slack-fill claim failed because plaintiff was not actually alleging that a portion of the container was empty, but rather that a portion of the lip balm product was inaccessible due to a mechanical feature of the container.

In the amended opinion, the panel included new paragraphs explaining that the plaintiff’s claims were distinguishable from those in Williams v. Gerber Prods. Co. (a Ninth Circuit case holding that an ingredient list could not “shield” deceptive front labeling, previously mentioned here) because unlike in Williams, the Sugar product did not have other deceptive labeling to be dispelled. To the contrary, Sugar’s weight label complied with federal and California law, and it did not contradict other representations or inferences on the packaging. The court held that in the absence of words, pictures, diagrams, or other depictions about lip balm accessibility adorning the package, there was no plausible claim under the reasonable consumer standard.

Ebner v. Fresh differs from some slack-fill actions because it involved inaccessible product rather than empty space in the packaging. Nevertheless, the amended language has already been applied in at least one run-of-the-mill slack-fill case. In Bush v. Mondelez Int’l, plaintiff alleged that certain Go-Pak products (such as Mini Oreo) had container sizes that led consumers to believe that there was more snack food than was actually contained therein, despite plaintiff’s admission that the product labels accurately disclosed the products’ net weights. In dismissing the claim, the district court for the Northern District of California wrote that “[n]o reasonable consumer expects the overall size of the packaging to reflect precisely the quantity of product contained therein,” and cited to Ebner v. Fresh in support of its holding that in the absence of other indications of snack quantity on the package aside from admittedly accurate net weight disclosures, it is not plausible that reasonable consumers would be misled into thinking the container would be “packed to the brim with snack.”

In sum, it appears that courts in California may now be approaching slack-fill suits with greater incredulity where a manufacturer accurately labels its product’s net weight. Watch this space for further developments.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at /212-969-3240 or /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.

De-certifiably Natural – Ninth Circuit Finds “All Natural” Label May be Misleading While Upholding Class Decertification

The Ninth Circuit Court of Appeals recently reversed in part and affirmed in part a Northern District of California ruling (discussed previously, here) concerning the “All Natural Fruit” labeling on Dole’s packaged fruit products. Brazil v. Dole Packaged Foods, LLC, No. 14-17480, 2016 WL 5539863 (9th Cir. Sept. 30, 2016). The appeals court reversed the lower court’s order granting summary judgment in favor of the defendant on plaintiff’s false advertising and unfair competition claims, finding that a trier of fact could conclude that the label is misleading to a reasonable consumer. Notably, the Ninth Circuit also ruled that the district court did not err in decertifying the class where plaintiff failed to show how damages could be calculated with proof common to the class.

With respect to decertification, the Ninth Circuit found that the district court properly limited damages to the difference between the prices customers paid and the value of the fruit they brought – otherwise known as the “price premium” attributable to the “All Natural Fruit” labels. The court held that the district court did not abuse its discretion in decertifying the class because the plaintiff failed to explain how this premium could be calculated with proof common to the class. The court also rejected the plaintiff’s claim that he would be entitled to damages under a theory of “nonrestitutionary disgorgement” if a price premium were not available. Although a disgorgement award could theoretically exceed an award of restitution, the court found that this was not the case here because the portion of Dole’s profits that were wrongfully obtained equaled the price premium paid by misled purchasers. As a result, restitution and disgorgement were functionally the same remedy, the plaintiff failed to show that either could be calculated with common proof across the class, and the class was properly decertified. The panel did allow the plaintiff to pursue an individual claim for restitution and class-wide injunctive relief on remand.

Although the Ninth Circuit affirmed the district court’s decision on class certification, it reversed the district court’s order granting summary judgment for Dole on plaintiff’s deceptive advertising claims. The plaintiff argued that Dole’s labels are deceptive because the products contain synthetic citric and ascorbic acid. The FDA has not directly addressed the meaning of “natural” since 1993, when the FDA informally defined it to mean “that nothing artificial or synthetic… has been included in, or has been added to, a food that would not normally be expected to be in the food.” However, the plaintiff cited to recent warning letters the FDA sent to food sellers who described their products as “all natural” even though the products included, among other substances, synthetic citric acid. In the warning letters, the FDA stated that foods which naturally contain citric acid, such as tomatoes, could not be labeled “all natural” if synthetic citric acid had been added. These warnings were made without reference to whether the synthetic substances would “not normally be expected to be in the food.”

Multiple “all natural” labeling suits have been stayed pending the Ninth Circuit’s decision in this case. While the panel’s decision in this case is unpublished, it will be interesting to see whether other courts take the same approach in relying on FDA warning letters to determine what goods can be labeled “all natural.” The court’s decision also highlights the importance of providing a damages model that can calculate a “price premium” across an entire class of plaintiffs at the class certification stage.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at /212-969-3240 or /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.

A Wrinkle in Time: Anti-Aging Advertising Claims Unsubstantiated by Testing Methods

The National Advertising Division (NAD)’s annual conference is taking place later this month, so we are taking the opportunity to highlight some recent NAD decisions of interest.  This post addresses Intraceuticals LLC (Atoxelene Skin Care Products), NAD Case No. 5953 (May 2016).

As part of its ongoing monitoring program, NAD reviewed Intraceuticals’ advertising claims that its Atoxelene Skin Care Products and Atoxelene Line Wand eliminate wrinkles. Among other express claims that NAD reviewed, were the following:

  • “Gets rid of wrinkles instantly – and they actually stay gone.”
  • “It’s not only effective, its 100% reliable.”
  • “Results are immediate.”

NAD determined that Intraceuticals failed to provide a reasonable basis for these claims. NAD disapproved of Intraceuticals’ small-scale trials of its products. Intraceuticals conducted three tests of the Atoxelene Line Wand. First, Intraceuticals tested the line wand on ten of its own staff members. Second, Intraceuticals tested its products on seven volunteers who were asked to report on their experience immediately after using the product. Third, Intraceuticals also conducted a randomized, double-blind study of ten subjects. While NAD found a number of issues with these tests, its chief criticism was that Intraceuticals’ test populations were too small at only seven or ten test subjects. Such a small sample size increases the possibility that the tested individuals are not representative of the targeted consumers. In addition, NAD was concerned that using employees as test subjects could bias the results. NAD therefore concluded that the results stemming from these tests of the Atoxelene Line Wand were insufficient to support Intraceuticals’ advertising claims.

In addition, NAD disapproved of Intraceuticals’ testing of isolated, individual ingredients within its Atoxelene Skin Care Products, rather than testing the product as a whole.  Intraceuticals tested specific ingredients both in vitro (in a controlled laboratory environment) and in vivo (on a whole, living organism).  NAD warned that in vitro testing of isolated ingredients had little or no validity in ascertaining the impact that a product will have when used by humans.  Also, NAD found that in vivo testing of isolated ingredients was inadequate in this instance because Intraceuticals’ marketing summaries failed to sufficiently describe the details of the test methodology or the results for each test subject.  More generally, NAD explained that testing particular ingredients in isolation cannot substitute for testing the product as a whole, particularly when a combination of ingredients affects the product‘s performance.  When testing is limited to the efficacy of an isolated ingredient, any claims based on the testing would have to be similarly limited to the ingredient itself.

Intraceuticals accepted NAD’s recommendation and agreed to modify or discontinue its advertising claims.  It looks like Intraceuticals may also have to fix a few wrinkles in its testing procedures before it makes further advertising claims.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at /212-969-3240 or /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.

Don’t Pick Me Off: Are Pre-Certification Claims Mooted By Deposited Full Settlement Offers?

On January 20, 2016, the Supreme Court held in Campbell-Ewald v. Gomez, 136 S. Ct. 663, 672, 193 L. Ed. 2d 571 (2016) that an unaccepted pre-certification settlement offer of complete relief in a putative class action, made to an individual plaintiff, does not moot that plaintiff’s claims.  As discussed in our previous coverage of Campbell-Ewald, the Supreme Court’s decision resolved a circuit split on that issue.

Campbell-Ewald stopped short of deciding the issue of whether a defendant actually tendering settlement funds (by sending a check or depositing the full offer of complete relief into an account payable to the individual plaintiff) would moot the plaintiff’s claims. So far, although lower courts are not all in agreement, they have tended to hold that such a deposit or tender, if unaccepted, does not moot a plaintiff’s claims. The issue has not made its way back to the Supreme Court, and given vigorous dissenting opinions from Chief Justice Roberts and Justice Alito, the Supreme Court may yet stop this trend.

The day after Campbell-Ewald was decided, the Eastern District of New York in Brady v. Basic Research, LLC became the first court to address this issue in the post-Campbell-Ewald landscape.  The Eastern District denied the defendants’ request for permission to deposit their settlement offer with the court under Rule 67(a) and thereby moot the plaintiffs’ claims.  Quoting Justice Ginsberg’s opinion of the court in Campbell-Ewald, the Brady court opined that a “would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted” and that it would be inappropriate to enter a judgment against the defendants over plaintiffs’ objection before plaintiffs had the opportunity to file a class certification motion.

More recently, two circuit courts of appeal have also turned to this question.  Last month, in Diana Mey v. North American Bancard, LLC, 2016 WL 3613395 (6th Cir. July 6, 2016), the Sixth Circuit held that a defendant could not moot pre-certification class claims by mailing a cashier’s check for the monetary amount of its full settlement offer to the plaintiff, where the check was promptly returned uncashed.

Similarly, in Chen v. Allstate Ins. Co., 819 F.3d 1136 (9th Cir. 2016), the Ninth Circuit held that a pre-certification full settlement offer, where the monetary amount is deposited in escrow, does not moot individual claims.  Like the Brady court, the Ninth Circuit emphasized Campbell-Ewald’s statement that a “would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.”  The Ninth Circuit clarified that, in its view, an individual claim becomes moot when a plaintiff actually receives all of the relief claimed, and that, under Campbell-Ewald, an “unaccepted settlement offer has no force.”

District courts in other circuits have reached similar conclusions. See Kilpatrick v. Caribbean Cruise Line, Inc. et al., No. 14-cv-61572 (S.D. Fla. Aug. 1, 2016); Bais Yaakov of Spring Valley v. Varitronics, LLC, No. 14-5008 (D. Minn. July 28, 2016); Family Med. Pharmacy, LLC v. Perfumania Holdings, Inc., No. 15-0563 (S.D. Ala. July 5, 2016); Ung v. Universal Acceptance Corp., No. 15-127 (D. Minn. June 3, 2016); O’Neal v. Am.’s Best Tire LLC, No. 16-00056 (D. Ariz. June 2, 2016); Tegtmeier v. PJ Iowa, L.C., No. 15-00110 (S.D. Iowa May 18, 2016); Fauley v. Royal Canin U.S.A., Inc., 143 F. Supp. 3d 763 (N.D. Ill. 2016); S. Orange Chiropractic Ctr., LLC v. Cayan LLC, No. 15-13069 (D. Mass. Apr. 12, 2016).  And on remand in the Campbell-Ewald case itself, the Central District of California likewise found that plaintiff Gomez’s claims remained “live,” even after defendants attempted to tender the full settlement amount.

However, some district court decisions have come out the other way. The District of Maryland, in Gray v. Kern, 143 F. Supp. 3d 363 (D. Md. 2016) and in Price v. Berman’s Auto., Inc., No. 14-763 (D. Md. Mar. 18, 2016), has held that depositing a full settlement offer would moot an individual plaintiff’s claims against individual defendants. Gray v. Kern cited the Alito dissent for support, and Price v. Berman’s Auto. read Justice Ginsberg’s opinion as conceding that cases involving offers of settlement are critically distinguishable from those involving actual payment. The Southern District of New York in Leyse v. Lifetime Entm’t Servs., LLC, No. 13-5794 (S.D.N.Y. Mar. 17, 2016) reached the same result, holding that once defendant has “furnished full relief,” plaintiff cannot object to the entry of judgment in its favor.  In support, Leyse v. Lifetime Entm’t Servs., LLC observed that “a party can always incur a default judgment and liability without any factual findings,” and reasoned that a plaintiff is not entitled to an admission of liability.

In sum, a growing number of federal courts have found that unaccepted pre-certification settlement offers do not moot plaintiffs’ claims, even where the full amount claimed is deposited or tendered to would-be class plaintiffs, so long as the plaintiffs do not accept the offer.  But not all lower courts are in agreement, and the Supreme Court may ultimately rule that an actually tendered settlement offer would moot plaintiffs’ claims. All eyes, and accounts payable to putative class plaintiffs, now turn to the remaining circuit courts that have not yet addressed this issue.  Watch this space for further developments.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at /212-969-3240 or /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.

False Ad Claims Fail to Crystalize as Court Dismisses Amended Complaint against Sharp Electronics with Prejudice

Dismissals of class action complaints with prejudice are not as common as dismissals with leave to replead, but a recent decision in the District of New Jersey illustrates the circumstances under which a dismissal with prejudice is appropriate. Continue Reading

Sugar Rush: FDA Rejects Use of “Evaporated Cane Juice” to Describe Sweeteners

For years, food companies have been using the term “evaporated cane juice” in the ingredients list on food products. This has resulted in a number of lawsuits by consumers claiming that the term misled them into thinking those products did not contain sugar, including this failed putative class action against KIND.  In May 2016, the Food and Drug Administration (“FDA”) chimed in with guidance advising the food industry that the agency is not so sweet on the term “evaporated cane juice,” and that this term should not be used on food labels to describe sweeteners derived from the fluid extract of sugar cane (i.e. cane sugars or syrups).  According to the FDA, use of this term to describe sweeteners made from sugar cane is false and misleading, since it suggests that the sweetener is “juice” from fruits or vegetables, and does not reveal that the ingredient’s “basic nature and characterizing properties are those of a sugar.”  Instead, the FDA says, this ingredient should be “declared on food labels as ‘sugar,’ preceded by one or more truthful, non-misleading descriptors if the manufacturer so chooses (e.g., ‘cane sugar’).” Continue Reading

FDA New-trition Rules

Last month, the FDA finalized amendments to the Nutrition Facts labeling rules for packaged foods and dietary supplements to reflect developments in nutrition science, including new scientific information regarding the link between diet and chronic diseases such as obesity and heart disease. Here are the highlights: Continue Reading