Evelyn Pang
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A judge in the Western District of Wisconsin recently denied a motion for a preliminary injunction that sought to prevent a customer from criticizing the plaintiff’s products over social media. Buckeye Int’l v. Schmidt Custom Floors, 2018 WL 1960115 (W.D. Wis. Apr. 26, 2018). Plaintiff Buckeye sells floor finishing products, and defendant Schmidt is a … Continue Reading
The Northern District of California recently denied class certification to a plaintiff who alleged that Gerber Products misbranded nutritional claims about baby food products in violation of state and federal labeling laws. Bruton v. Gerber Products Co. et al. The plaintiff had previously moved to certify a damages and an injunctive relief class in 2014. However, … Continue Reading
Last month, the FDA announced that companies will be able to label baby food products with advice about how the early introduction of peanuts in an infant’s diet may reduce the risk of developing a peanut allergy. This marks the first time the FDA has permitted a qualified health claim of food allergy prevention. These labels … Continue Reading
In an interesting recent opinion, the Eleventh Circuit held that a doctor’s blog post criticizing another doctor and his clinical practice could not form the basis of a Lanham Act claim because the blog posts were not commercial advertising or promotion. This case thus involves a rare circumstance in which a communication did not qualify … Continue Reading
The Southern District of New York recently dismissed a putative class action against Cytosport, the maker of Muscle Milk protein powder. The plaintiff, Orlando Bautista, alleged that he bought a container of Muscle Milk protein powder for $28 but was “surprised and disappointed” to discover that the package contained roughly 30% empty space. The suit … Continue Reading
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 … Continue Reading
The Food and Drug Administration has kindly permitted Kind LLC to use the term “healthy” on its snack bars again, but with the caveat that the term must only be used in text clearly presented as part of Kind’s corporate philosophy, and not as a claim about the products’ nutrient content.… Continue Reading
Last week, an appellate court held that a plaintiff has standing to bring a false association and false advertising claim under Section 43(a) of the Lanham Act, even though it did not use its mark or sell its competing product in the United States. In Belmora LLC v. Bayer Consumer Care AG, a Fourth Circuit … Continue Reading
Clarion Brands, LLC recently received an earful from the National Advertising Division (“NAD”) about its marketing of the dietary supplement Lipo-Flavonoid Plus. Clarion had been marketing Lipo-Flavonoid Plus with advertising that the NAD found reasonably conveys the message that the supplement substantially reduces or eliminates tinnitus and the symptoms of Ménière’s disease—conditions that affect an … Continue Reading
Lanham Act Injunction Floored Where Social Media Criticisms Were Not “Commercial Advertising”
By Lawrence Weinstein, Alexander Kaplan and Evelyn Pang on Posted in Injunctions, Lanham Act
No More Baby Talk: Class Certification Denied in Gerber False Advertising Suit
By Lawrence Weinstein, Jeff Warshafsky and Evelyn Pang on Posted in Class Actions, Labeling Claims
FDA Approves First Qualified Health Claim about Allergy Prevention on Baby Food Labels
By Lawrence Weinstein and Evelyn Pang on Posted in Regulatory
No Scrubs Permitted: Eleventh Circuit Affirms Blog Post Is Not Advertising Actionable Under Lanham Act
By Alexander Kaplan and Evelyn Pang on Posted in Lanham Act
When the Strength of the Facts Cannot be Lifted – SDNY Dismisses Muscle Maker Slack-Fill Class Action
By Lawrence Weinstein, Jennifer Yang and Evelyn Pang on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Regulatory
De-certifiably Natural – Ninth Circuit Finds “All Natural” Label May be Misleading While Upholding Class Decertification
By Lawrence Weinstein, Jennifer Yang and Evelyn Pang on Posted in Class Actions, Labeling Claims, Regulatory
“KIND” of Nutritious—FDA Permits “Healthy” Label and Agrees to Rethink Its Definition of “Healthy” Foods
By Lawrence Weinstein, Jennifer Yang and Evelyn Pang on Posted in Regulatory
Fourth Circuit Extends Section 43(a) Lanham Act Standing to Companies Not Selling Their Product or Using Their Mark in the U.S.
By Alexander Kaplan and Evelyn Pang on Posted in Lanham Act
Can You Hear Me Now? NAD Finds Scientific Evidence Insufficient to Support Dietary Supplement’s Claims of Ear Discomfort Relief
By Lawrence Weinstein, Jennifer Yang and Evelyn Pang on Posted in NAD/NARB/CARU/ERSP