Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Reasonable consumer standard

Instant Dismissal: Court Dismisses Instant Oatmeal Case against Whole Foods Market

By Baldassare Vinti, Jeff Warshafsky and Reut N. Samuels on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Rachel Kovner of the Eastern District of New York recently dismissed a putative class action challenging Whole Foods Market’s label claims that its Oats & Flax Instant Oatmeal contains “dehydrated cane juice solids” and is “100 % Whole Grain – 18g or more per serving.” Plaintiffs alleged these labels communicate that the oatmeal is … Continue Reading

The Rise and Fall of “Vanilla” Labeling Challenges

By Lawrence Weinstein, Jeff Warshafsky and Alyson Tocicki on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Beginning in 2020, the advertising world saw an explosion of putative class-actions challenging the use of “vanilla” to describe products where the vanilla flavoring allegedly is not derived exclusively from the vanilla bean plant.  We previously blogged about several such cases. One plaintiff’s attorney alone, Spencer Sheehan, has filed—and continues to file—hundreds of these cases.  … Continue Reading

Let it “Bee”: Ninth Circuit Affirms Dismissal of Trader Joe’s Manuka Honey Advertising Suit

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Timothy E. Burroughs on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
A Ninth Circuit panel recently affirmed dismissal of a putative consumer class action alleging Trader Joe’s misleadingly labeled its store brand honey as “100% New Zealand Manuka Honey,” where plaintiffs’ pollen content testing showed that only about 60% of the honey was derived from Manuka flower nectar. In doing so, the Court reinforced the importance … Continue Reading

Judge Wipes Out “Wet Ones” False Advertising Suit

By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Todd W. Robinson of the Southern District of California recently dismissed a putative class action against Edgewell Personal Care, the makers of Wet Ones antibacterial hand wipes, alleging it misled consumers by representing Wet Ones kill 99.99 percent of germs and are “hypoallergenic” and “gentle.” In dismissing plaintiff’s claims, the court found no reasonable … Continue Reading

Ninth Circuit Drowns Out Alkaline Water Suit

By Lawrence Weinstein, Baldassare Vinti, Anisha Shenai-Khatkhate and Jessica Griffith on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
The Ninth Circuit recently affirmed the dismissal of a putative class action alleging Trader Joe’s misled consumers by representing its Alkaline Water product as “ionized to achieve the perfect balance.”  In rejecting plaintiff’ allegations that the advertising referred to balancing the consumer’s internal pH rather than the balanced pH of the product itself, the Court … Continue Reading

A Dose of Relief: Federal Judge Dismisses Walgreens Infant Acetaminophen Class Action

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Alyson Tocicki on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Edward Davila of the U.S. District Court for the Northern District of California recently dismissed with prejudice a putative class action alleging Walgreens misled consumers into believing its store-brand Infants’ Pain & Fever Acetaminophen is specially formulated for infants.  In dismissing the suit, the court found the product’s labeling would not be likely to … Continue Reading

Top Dog: Champion Petfoods Wins Dismissal of Dog Food Suit

By Lawrence Weinstein, Jeff Warshafsky and Jessica Griffith on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Minnesota federal district court Judge Patrick J. Schiltz recently dismissed with prejudice an alleged class action claiming that Champion Petfoods misrepresented the quality of its dog food and ingredients by failing to disclose traces of heavy metals and barbiturates. In dismissing the suit, Judge Schiltz found no reasonable consumer was likely to interpret the contested … Continue Reading

Ninth Circuit Claws Back “Krab Mix” Class Action Dismissal

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Alyson Tocicki on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
A split Ninth Circuit panel recently reversed the dismissal of claims against P.F. Chang’s regarding the chain’s use of the term “krab mix” in the ingredients list for certain sushi rolls. Kang v. P.F. Chang’s China Bistro, No. 20-55138 (9th Cir. Feb. 9, 2021). Plaintiff claimed he purchased P.F. Chang’s “krab mix” sushi rolls because … Continue Reading

Judge Has No “Reservations” Dismissing Advertising Suit Against Omni Hotels

By Lawrence Weinstein, Jennifer Yang and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices
Judge Cathy Ann Bencivengo of the U.S. District Court for the Southern District of California recently dismissed with prejudice a putative class action alleging that the Omni luxury hotel chain deceptively advertised its hotel room rates on Expedia. In doing so, the Court found plaintiff failed to adequately allege that reasonable consumers would be deceived … Continue Reading

2020 Advertising Law Year in Review

By Lawrence Weinstein, Baldassare Vinti, Jeff Warshafsky, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Lanham Act, NAD/NARB/CARU/ERSP, Regulatory
While 2020 was an eventful year in the world of advertising law, it feels wrong to begin any type of “year in review” without acknowledging the global events of this year, and the challenges they have brought to every individual in one way or another. In our role, we are often in a position of … Continue Reading

Judges Toss Plain “Vanilla” Deceptive Labeling Claims

By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
The beverage industry came out on top in a pair of recently dismissed lawsuits alleging the use of the term “vanilla” on drink labels was misleading, where the vanilla flavor allegedly did not come exclusively from the vanilla bean plant. Howard Clark v. Westbrae Natural, No. 20-cv-03221-JSC (N.D. Cal. December 1, 2020); Ryan Cosgrove et … Continue Reading

Seventh Circuit Sides with Plaintiffs in Appeal of “100% Grated Parmesan Cheese” Claims

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Bryant D. Wright on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
The Seventh Circuit recently reversed a district court’s dismissal of a class action false advertising complaint, holding that an ingredient list’s disclosure of components other than parmesan cheese did not foreclose the possibility of reasonable consumers being deceived by a “100% Grated Parmesan Cheese” front label claim.  Bell v. Publix Super Markets, Nos. 19-2581 & … Continue Reading

Much A-Brew About Nothing: Court Dismisses False Ad Suit Against Starbucks

By Lawrence Weinstein, Jeff Warshafsky and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Alison Nathan of the U.S. District Court for the Southern District of New York recently dismissed with prejudice a putative class action alleging Starbucks misrepresented itself as a “premium” coffee retailer. In doing so, the Court found that plaintiffs failed to allege Starbucks made any statements likely to mislead reasonable consumers, and that nearly … Continue Reading

Survey Evidence in Amended Complaint Does Not Add Enough Juice to Save “Natural” Claims Against Mott’s Apple Products

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Eric Wertheim on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Beth Freeman of the U.S. District Court for the Northern District of California recently dismissed with prejudice a putative class action alleging that Mott’s apple-based products were deceptively labeled “Natural” and as containing “All Natural Ingredients.” Yu v. Dr Pepper Snapple Group, No. 18-cv-06664-BLF (N.D. Cal. Oct. 6, 2020). In doing so, Judge Freeman … Continue Reading

Judge Dunks Plaintiffs’ Claims and Dismisses Oreo False Advertising Lawsuit

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Edward R. Korman of the U.S. District Court for the Eastern District of New York recently granted Mondelēz Global’s motion to dismiss a putative class action challenging the advertising for its signature Oreo cookies. Harris v. Mondelēz Global, No. 19-cv-2249-ERK (E.D.N.Y. July 28, 2020). Plaintiffs alleged the Oreo manufacturer’s front label statement “Always Made … Continue Reading

Court Tosses Hogwash Claims, OKs Pork Producer’s Use of “Prime” in Advertising

By Lawrence Weinstein, Jeff Warshafsky and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Paul C. Huck of the U.S. District Court for the Southern District of Florida recently granted a motion to dismiss brought by Defendants The Fresh Market and Tyson Fresh Meats in a putative consumer class action alleging that defendants deceptively marketed their “Chairman’s Reserve Prime Pork” product as graded prime by the federal Department … Continue Reading

Judge Dismisses Half-Baked False Advertising Claims Against Ghirardelli

By Lawrence Weinstein, Jeff Warshafsky and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
On April 8, 2020, Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California granted Ghirardelli Chocolate’s motion to dismiss a putative nationwide class action brought by several consumers who alleged Ghirardelli deceptively marketed its “premium classic white” baking chips as containing white chocolate. Cheslow v. Ghirardelli Chocolate, No. 19-CV-07467-PJH, … Continue Reading

Seventh Circuit Finds No Evidence of Deception in Aloe Vera Gel Labeling Lawsuit

By Lawrence Weinstein, Carl Mazurek and Monique Curry on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Last month, a Seventh Circuit panel unanimously affirmed the district court’s grant of summary judgment dismissing a consumer class action alleging that Fruit of the Earth and its retailer clients deceptively labeled aloe vera gel products. Beardsall v. CVS, 19-1850 (7th Cir. Mar. 24, 2020). Defendants’ aloe vera products are labeled as “Aloe Vera 100% … Continue Reading

Second Circuit Finds Consumer Suit Against Dunkin’ Not Well Done

By Lawrence Weinstein, Jeff Warshafsky and Emily H. Kline on Posted in Class Actions, Deceptive Trade Practices
A Second Circuit panel recently affirmed the dismissal of a putative false advertising class action against Dunkin’ Brands, which alleged the company misled consumers as to the contents of products Dunkin’ described as “Angus steak.” Chen v. Dunkin’ Brands, 18-cv-3087 (2d Cir. Mar. 31, 2020). The complaint asserted claims under various state consumer protection laws, … Continue Reading

Beverage Mislabeling Suit Runs Out of Juice

By Lawrence Weinstein, Jeff Warshafsky and Carl Mazurek on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
On February 6, the California Court of Appeals (Second Appellate District) sustained a lower court’s dismissal of a putative class action alleging that the claim “no sugar added” on the label of tangerine juice is deceptive because it falsely implies that competing products do contain added sugar. Schaeffer v. Califia Farms, BC654207 (Cal. App. 2d … Continue Reading

The Fun Did Stop for Pringles False Advertising Class Action

By Lawrence Weinstein, Jeff Warshafsky and Emily H. Kline on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
On January 31, 2020, Southern District of New York Judge Alvin Hellerstein denied Plaintiff Matthew Marotto’s motion for reconsideration of an order denying class certification in his lawsuit against Pringles potato chip maker Kellogg over allegedly misleading labeling of Pringles cans. Marotto v. Kellogg, No. 1:18-cv-03545 (S.D.N.Y. Jan. 31, 2020).… Continue Reading

Ninth Circuit Confirms Dr Pepper Can Stick to its “Diet”

By Lawrence Weinstein, Jennifer Yang and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
The Ninth Circuit recently affirmed the dismissal of a putative class action alleging that defendant Dr Pepper/Seven Up, Inc. (“Dr Pepper”) violated various California consumer fraud laws by using the term “diet” in naming and marketing Diet Dr Pepper. Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225 (9th Cir. 2019). Plaintiff alleged that this … Continue Reading

Seventh Circuit Remands after District Judge Makes Injunction Stickier in Light Beer Corn Syrup Dispute

By Lawrence Weinstein, Carl Mazurek and Ariella Muller on Posted in Deceptive Trade Practices, Injunctions, Labeling Claims
The Seventh Circuit has remanded a lawsuit concerning beer advertising to the district court for failure to follow required procedures in issuing a preliminary injunction – the latest development in the case’s torturous procedural history. On May 24, 2019, Judge William Conley of the Western District of Wisconsin issued a preliminary injunction banning Anheuser-Busch from … Continue Reading
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