Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Preemption

The Legal “Pecking Order”: Ninth Circuit Finds Poultry Labeling Claims Preempted

By Lawrence Weinstein, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Primary Jurisdiction/Preemption
In a unanimous precedential decision, a Ninth Circuit panel recently affirmed the dismissal of a putative class action against Trader Joe’s, which alleged that the statement “Up to 5% Retained Water” on Trader Joe’s poultry product labels was misleading. According to Plaintiff, her independent testing showed Trader Joe’s poultry products contained a higher percentage of … Continue Reading

Conagra Slips Away from Parkay Oil Spray Serving Size Claims

By Lawrence Weinstein, Jeff Warshafsky and Eric Wertheim on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Primary Jurisdiction/Preemption, Regulatory
Conagra Brands recently emerged victorious when Judge William H. Orrick of the U.S. District Court for the Northern District of California granted summary judgment in its favor, tossing claims that the company disguises the fat and calorie content of its Parkay Spray vegetable oil spray product (“Parkay”) with artificially small serving sizes. Allen v. Conagra … Continue Reading

Gin Manufacturer Bacardi Avoids Lawsuit for Its Use of “Grains of Paradise”

By Lawrence Weinstein, Carl Mazurek and Monique Curry on Posted in Class Actions, FDCA, Regulatory
A federal judge in the Southern District of Florida recently dismissed an action alleging that Bacardi’s use of a botanical called “grains of paradise” in its gin was “harmful and illegal,” holding that the statute on which the lawsuit was based was preempted by federal law. Marrache v. Bacardi U.S.A, 19-cv-23856 (S.D. Fla. Jan. 28, … Continue Reading

No Use Crying Over Spilled (Almond) Milk: Ninth Circuit Upholds Dismissal of Almond Milk Labeling Suit

By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, FDCA, Labeling Claims, Primary Jurisdiction/Preemption, Typicality Requirement
On December 20, 2018, the Ninth Circuit affirmed the dismissal without leave to amend of a putative class action complaint against Blue Diamond Growers, which alleged that the term “almond milk” on Blue Diamond’s beverages was misleading. Painter v. Blue Diamond Growers, — Fed.Appx. —, 2018 WL 6720560 (9th Cir. Dec. 20, 2018). The named … Continue Reading

Eleventh Circuit Works Out Preclusion and Preemption Issues in Protein Powder Dispute

By Lawrence Weinstein, Jeff Warshafsky and Emily H. Kline on Posted in Labeling Claims, Lanham Act, Primary Jurisdiction/Preemption
On December 4, 2018, the Eleventh Circuit partially reversed the dismissal of Hi-Tech Pharmaceuticals’ suit against HBS International Corp. for alleged violations of the Lanham Act and Georgia’s Uniform Deceptive Trade Practices Act. Hi-Tech Pharmaceuticals, Inc. v. HBS International Corp., No. 17-13884 (11th Cir. 2018). Hi-Tech alleged that the label of HBS’s protein-powder supplement – … Continue Reading

District Court Filters Out Preempted “Spring Water” False Advertising Claim

By Alexander Kaplan and Jeff Warshafsky on Posted in Lanham Act
Earlier this year, we covered a decision from the District of Connecticut finding state law false advertising claims against the bottled water company Poland Spring preempted by the FDCA. Flowing from that decision is the case we are covering today: Frompovicz v. Niagara Bottling, LLC, 2018 WL 4465879 (E.D. Pa. Sept. 18, 2018).… Continue Reading

Federal “Spring Water” Standards Runneth Over State Claims

By Lawrence Weinstein and Daniel Werb on Posted in Class Actions, FDCA, Labeling Claims, Primary Jurisdiction/Preemption
We often cover cases in which false advertising claims brought under state law are challenged as preempted by a federal regulatory scheme.  Poland Spring was a recent target of state law false advertising claims, and successfully obtained the dismissal of those claims on the ground that they were preempted by federal statute.  Patane v. Nestle … Continue Reading

Organic Baby Food for Thought: Second Circuit Holds that OFPA Certified Organic Product Labels Cannot Be Challenged as Misleading Under State Law

By Lawrence Weinstein and Julia M. Ansanelli on Posted in Class Actions, Primary Jurisdiction/Preemption
The Second Circuit recently affirmed the dismissal of a class action asserting state law claims that a manufacturer falsely advertised its baby formula as organic.  In doing so, the appellate court agreed with the district court’s finding that the claims were preempted by a federal law called the Organic Foods Production Act (“OFPA”).  Marentette v. … Continue Reading

Snack Bar Class Action is KIND-ly Stayed Pending USDA Regulation on Bioengineered Food

By Lawrence Weinstein, Jeff Warshafsky and Carl Mazurek on Posted in Class Actions, Primary Jurisdiction/Preemption, Regulatory
Earlier this month, Judge William H. Pauley III in the Southern District of New York stayed a lawsuit against the snack bar maker KIND LLC, styled as a class action, alleging that KIND falsely marketed its products as “all natural” and “non-GMO.”  In re KIND LLC “Healthy & All Natural” Litigation, 2018 WL 1156009 (S.D.N.Y. … Continue Reading

California Supreme Court Holds Organic Labeling Suit a Natural Fit in State Court

By Lawrence Weinstein, Jeff Warshafsky and Sarah Sullivan on Posted in Labeling Claims, Primary Jurisdiction/Preemption
In December, the California Supreme Court held that a challenge to a farm’s labeling of its herbs as “organic” under state false advertising laws is not preempted by the federal Organic Foods Production Act of 1990 (“Organic Foods Act”). Although the Defendant, Herb Thyme Farms, Inc., typically used conventional herb-growing methods, one of its farms … Continue Reading

Imburgia v. DIRECTV: Did a California Court of Appeal Really Say You Can Contract Around Congress?

By Lindsey Olson and Victoria Loughery on Posted in Class Actions, Deceptive Trade Practices, Primary Jurisdiction/Preemption
On April 7, 2014, a California appellate court sweepingly rejected DIRECTV’s appeal from a lower court decision finding unenforceable the arbitration clause in DIRECTV’s consumer contracts, which contained a class action waiver provision.  This decision will allow the plaintiffs to proceed as a class in California state court rather than require them to seek individual … Continue Reading
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