Class action lawsuits targeting pixels and other tracking technologies are showing no signs of slowing, and while most of these cases have focused on website tracking tech and California’s wiretapping law, there has been a more recent surge of cases in Arizona alleging violations of Arizona Telephone, Utility, and Communication Service Records Act A.R.S. § 44-1376 et seq. (the “Arizona Law”) based on email pixel tracking. As we previously reported, a few cases focused on tracking pixels in emails popped up late last year, based both on the California Invasion of Privacy Act (CIPA) and the Arizona Law, and a new group of these cases has recently been filed accusing several companies, including Target, Gap, Lowe’s and Salesforce of embedding “spy pixels” in marketing emails in violation of the Arizona Law.
Amid Rise in Forever Chemicals Cases, Courts Dismiss PFAS Claims Which Rely on Inadequate Product Testing
As chemicals of concern litigation continues to surge across the nation, companies increasingly find their products under scrutiny for alleged contamination of these “forever chemicals.” These “forever chemicals” have become a focal point for environmental and consumer protection lawsuits, as plaintiffs’ attorneys increasingly target companies to leverage the frequent media attention surrounding per- and polyfluoroalkyl substances (“PFAS”) chemicals. However, a closer examination of these allegations often reveals that they hinge on speculative claims or flawed testing methodologies. Indeed, plaintiffs frequently rely on inconclusive or misinterpreted data, leading to cases built more on sensationalism than on solid scientific evidence. Courts have dismissed such cases in recent months on grounds that such claims are inadequately supported.
For example, in Brown v. Coty, Judge Analisa Torres of the Southern District of New York dismissed a proposed class action alleging Coty, Inc. failed to disclose the presence of PFAS in two of their CoverGirl waterproof mascara products, Lash Blast and Clump Crusher. Brown v. Coty, Inc., No. 22-cv-2696 (S.D.N.Y. Mar. 1, 2024). The plaintiffs argued Coty misled consumers by failing to disclose the alleged presence of PFAS in light of Coty’s self-professed use of “strict quality control measures” and “rigorous testing.”
The plaintiffs relied on two studies to support their allegations. The “Notre Dame Study,” published by two Notre Dame scientists in 2021, found that certain beauty products from a variety of brands contain high proportions of fluorine, to which the plaintiffs pointed as a “scientifically valid, widely used method to investigate whether PFAS are present” in cosmetics. The plaintiffs also commissioned their own study, which found that Lash Blast and Clump Crusher each contained up to five different types of PFAS.
The Court found the cited studies did not support plaintiffs’ claims that the challenged products contained PFAS. As to the Notre Dame study, the Court found the plaintiffs did not allege the total number of mascara products tested, whether the presence of fluorine in those products necessarily indicated the presence of PFAS, or whether Lash Blast or Clump Crusher were even among the products tested. The Court similarly found the plaintiffs’ study did not establish that the PFAS found in the tested tubes of Lash Blast and Clump Crusher—which were not those purchased by the plaintiffs—supported an inference that PFAS contamination was so “systemic” in the products that the tubes purchased by the plaintiffs must also have contained PFAS.
In Onaka v. Shiseido Americas Corporation, Judge Loretta Preska of the Southern District of New York likewise dismissed a putative class action alleging Shiseido deceptively labeled its bareMinerals beauty products as “clean” and “natural” when the products allegedly contained PFAS. Onaka v. Shiseido Americas Corporation, No. 1:21‑cv‑10665‑PAC (S.D.N.Y. Mar. 19, 2024). In dismissing the suit, the Court found plaintiffs lacked standing because they failed to plausibly allege that any of the products they purchased did, in fact, contain PFAS.
To support their allegations, plaintiffs tested two samples of five products within the same product line as the items they bought (rather than testing their own items) for the presence of PFAS. The Court found plaintiffs failed to “meaningfully link the results of their independent test to Plaintiffs’ actual Purchased Products” because plaintiffs did not allege they tested the products near in time to their purchases of those products. The plaintiffs alleged the testing was conducted in September and October 2021, but did not allege that they purchased any of the tested products reasonably near that time period.
Moreover, the Court found it could not extrapolate plaintiffs’ isolated testing broadly to Shiseido’s products. Plaintiffs’ reliance on the same Notre Dame study as the Brown plaintiffs was insufficient because it did not specify which line of products were tested, and only tested products purchased well before any of plaintiffs’ alleged purchases. The Court noted that other courts considering the same study in relation to similar claims found it to be unhelpful for standing purposes—for reasons including that the plaintiffs in those cases failed to allege whether the Notre Dame study detected the same type of PFAS as detected in plaintiffs’ own testing, as well as how many of the products tested in the Notre Dame study were found to have high fluorine levels.
Most recently, Judge Margo Brodie of the Eastern District of New York dismissed claims that Keurig Dr. Pepper’s Nantucket Nectars and Snapple product lines were misbranded as “all natural” because they allegedly contained PFAS. Walker v. Keurig Dr. Pepper, Inc., No. 22-cv-5557 (E.D.N.Y. July 16, 2024). Citing to Brown and Onaka (among other decisions), the Court found the plaintiff failed to allege he suffered an injury in fact because his allegations detailing his independent testing of the products was too vague to conclude he purchased and consumed products containing PFAS. Among other things, the plaintiff did not allege that he tested the actual products he purchased, nor did he claim the testing was performed reasonably close in time to his own actual purchase of the tested products.
The Court also rejected the plaintiff’s assertion that the products were “systematically contaminated.” Though the plaintiff claimed his independent testing revealed “the Products all contain PFAS in amounts that dramatically exceed” the EPA recommended limit for PFAS in drinking water, the plaintiff’s allegations did not confirm “how many of each type of Product was tested, when they were tested, or which Products are within the bucket of the ‘some Products’” the plaintiff claimed contained PFAS in excess of the EPA’s recommended limit for drinking water. The plaintiff also failed to specify which types or flavors of the products he had purchased. The Court found that without more information regarding the testing performed or the actual products the plaintiff purchased, it could not conclude it was plausible the plaintiff had purchased a contaminated product.
These decisions demonstrate that courts will reject allegations of deception that rely on inadequate testing and speculative inferences regarding alleged product contamination. Companies faced with such lawsuits should demand that plaintiffs perform a reasonable pre-suit investigation and meet their pleading burden by providing specific facts which support a plausible inference that the products at issue contain the alleged chemical of concern. It is crucial to hire defense counsel with strong scientific backgrounds capable of scrutinizing and contesting the methodologies, data interpretation, and statistical analyses presented by plaintiffs. This approach ensures that only well-substantiated claims proceed, protecting companies from speculative litigation. At Proskauer, we routinely advise clients on PFAS-related matters, ensuring they are well-prepared to challenge and defend against such claims with the necessary scientific and legal expertise.
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Game Over: Court Dismisses Class Action Lawsuit Over Gaming Computer Performance
The gaming industry is increasingly becoming a target for consumer class actions, as plaintiffs’ attorneys are scrutinizing the marketing and performance claims of gaming PCs and accessories. However, gaming companies are not without recourse. Recent legal decisions demonstrate that courts are willing to dismiss cases where plaintiffs fail to provide specific facts that support their allegations. For instance, Judge Paul L. Maloney of the Western District of Michigan dismissed a putative class action lawsuit against Lenovo which alleged the computers do not live up to their advertised performance capabilities for resource-intensive uses like gaming and graphic design. In dismissing plaintiff’s complaint, Judge Maloney found the plaintiff had “[i]n essence, … strung together some marketing language … [to] plead[] fraud in a deficient manner.” Dinwiddie v. Lenovo, Case No. 2:22-cv-00218 (W.D. Mich. March 27, 2024).
Plaintiff alleged the computer had been marketed as having advanced features like an “Intel Core i5 2.90 GHz processor [that] provides [a] solid performance” and “a NVIDIA GeForce GTX 1650 Super discrete graphic card for gaming and graphic designing, [to deliver an] optimal visual experience.” Plaintiff alleged these representations communicated that the computer would “function reliably, not freeze or crash, and run smoothly during operation subject to normal use.” Plaintiff alleged Lenovo’s advertising was misleading, because he and other users frequently experienced freezing and crashes when using their computers. He included in his complaint a handful of anonymous internet posts claiming to be from people who owned this computer and experienced similar problems.
The Court was unconvinced. Critically, the Court noted that nowhere did defendant actually promise that the product would “not freeze or crash,” “function reliably,” or “run smoothly”; those takeaways were based on plaintiff’s own assumptions. The Court also found that Lenovo’s “solid performance” advertising claim was too general and vague to maintain a misrepresentation claim. The court analogized the Plaintiff’s claims to those previously dismissed in Vivar v. Apple Inc., No. 22 Civ. 0347 (S.D.N.Y. Sept. 12, 2022), a similar case brought by the same Plaintiff’s counsel. There, the Court dismissed fraud claims that were similarly predicated on “general advertisements.” In Vivar, the Court similarly noted that while Apple advertised its earbuds as having “up to 9 hours of listening time,” and “powered by the Apple H1 Chip” with “dual audio control,” it never represented that the earbuds would be defect-free.
This decision serves as an important reminder that theories of deception grounded only in a plaintiff’s unsupported assumptions are ripe for dismissal. A complaint alleging injury as a result of purported advertising misrepresentations must be grounded in the text of the advertising itself. Companies in the gaming industry facing similar legal challenges can rely on Proskauer’s deep expertise in this sector. Our class action defense team has significant experience defending gaming companies against claims related to performance advertising, under both consumer protection laws and the Lanham Act. We understand the unique challenges of the gaming market and provide tailored legal strategies to effectively counter unfounded allegations, ensuring the protection of your business interests and brand reputation.
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Eco-Friendly Claims Under Fire: The Legal Risks of Greenwashing for Businesses
In today’s market, eco-friendly claims can serve as a tool for companies looking to attract environmentally conscious consumers. However, this surge in green marketing has also caught the attention of the plaintiffs’ bar, which is increasingly scrutinizing these claims for lucrative opportunities in potential lawsuits. As demonstrated by recent legal actions, companies must tread carefully to avoid the pitfalls of greenwashing and the ensuing legal challenges. In one such action, the Northern District of California affirmed its refusal to dispose of claims challenging the use of eco-friendly labeling on Rust-Oleum’s KRUD KUTTER products. Bush v. Rust-Oleum Co., No. 20-cv-3268 (N.D. Cal. Jan. 26, 2024). At the center of the case are the Green Guides—guidance published by the FTC which provides direction on the use of environmental marketing claims in connection with “green” products and services.
The plaintiff alleged Rust-Oleum improperly labeled its KRUD KUTTER products as “Non-Toxic” and “Earth Friendly,” allegedly contradicting warnings on the packaging stating the products were eye and skin irritants. In support, the plaintiff cited the Safety Data Sheets for each product, which outlined hazards associated with the products including “serious eye damage,” “skin irritation,” and harm “if inhaled . . . or swallowed.” Rust-Oleum moved to dismiss, arguing that a reasonable consumer would not understand “non-toxic” to mean that the product “did not pose any risk to humans, animals or the environment”—as argued by the plaintiff—because the plaintiff’s proposed understanding differed from the dictionary definition of the word “toxic,” as well as FTC guidance on the term “non-toxic” in the Green Guides. The Court denied that motion in 2021.
The Court revisited these issues on Rust-Oleum’s motion for summary judgment, and denied that motion too. Like at the pleading stage, the Court found it could not say as a matter of law that the plaintiff’s proffered definitions of “non-toxic” and “earth friendly” were unreasonable, and Rust-Oleum had failed to show that no reasonable consumer would be misled. The Court noted that while the Green Guides were not dispositive under the reasonable consumer test, Rust-Oleum’s reliance on deposition testimony from the plaintiff and his expert acknowledging that it was impossible to reduce all toxic risk was insufficient to show there was no risk of consumer deception. The Court also rejected Rust-Oleum’s argument that “earth friendly” was puffery, finding the term was not so general or nonspecific as to make it “extremely unlikely” that a consumer would rely on it, and that any puffery argument was undermined by California statutory law defining the term.
As seen in this case, “going green” isn’t as simple as it might seem. While not binding, the Green Guides can play a key role in shaping the contours of both how environmental claims are made and how they may be interpreted. Advertisers can avoid costly legal battles by carefully reviewing relevant guidance before touting the environmental benefits of their products. It’s crucial to engage experienced trial counsel knowledgeable in the Green Guides and environmental sciences to meticulously review advertising claims and to defend against overaggressive enforcement by the plaintiffs’ bar. Our team is equipped to provide the expertise needed to navigate these complex issues and protect your business from allegations that threaten your business and its reputation.
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What’s in a Word? The Legal Battle over “Natural” in False Advertising
While class actions centered around “natural” claims remain popular with the plaintiffs’ bar, this past year has seen some growing skepticism from courts towards such lawsuits, particularly where plaintiffs fail to adequately explain what is deceptive about the term.
In January, Judge Kimba M. Wood of the Southern District of New York granted summary judgment to Colgate-Palmolive and its subsidiary Tom’s of Maine in a putative class action challenging the use of the term “natural” on Tom’s toothpaste and deodorant products. De Lacour v. Colgate-Palmolive Co., No.16-cv-8364 (S.D.N.Y. Jan. 3, 2024). The Court found that the plaintiff’s evidence was insufficient to demonstrate that a reasonable consumer would understand “natural” to convey that the challenged products do not contain synthetic and/or highly chemically processed ingredients. The Court dismissed the plaintiff’s surveys as “fatally flawed” because they defined “natural” and “artificial” only in relation to each other (i.e., “natural” as meaning “not artificial”, and “artificial” as meaning “not natural”) and failed to provide respondents with adequate definitions of those otherwise ambiguous terms. Additionally, when asked what other things the word “natural” communicated, respondents gave responses as varied as “certified organic,” “earthy,” “[n]o animal testing, recyclable,” “[n]o aluminum,” and, “natural.” Looking at these surveys and other evidence in the record, including the fact that there is no governmental guidance regarding the use of “natural” labeling on personal care products, the Court found that the evidence demonstrated “that there are many interpretations of the word ‘natural,’” and the named plaintiff’s subjective interpretation of the term was insufficient to establish evidence of widespread consumer confusion.
Other cases have followed similar reasoning. For instance, in McGinity v. Proctor & Gamble, 69 F. 4th 1093 (9th Cir. 2023), consumers sued P&G, alleging that the “Nature Fusion” label on P&G’s Pantene Pro-V hair products misled consumers into believing the items were natural, despite containing synthetic ingredients. The district court dismissed the complaint, holding that a reasonable consumer would not be deceived by the label.
The Ninth Circuit affirmed the dismissal, emphasizing the ambiguity of the term “Nature Fusion.” The Court found that this ambiguity was resolved by reading the back label, which clarified that the products contain both natural and synthetic components, rendering the labeling of the product not deceptive as a matter of law.
Given the continued prevalence of lawsuits surrounding “natural” claims, companies should continue to exercise caution in assessing the messages conveyed by such claims in context. However, if courts continue to recognize the potential ambiguity in “natural” claims, as they have increasingly done over the past year, such claims may finally become a less popular target going forward, given their susceptibility to motions to dismiss and the difficulty of certifying a class.
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Reasonable Consumer Analysis Leads to Dismissal of Claims of Greenwashing
Many brands have reformulated beloved products with “cleaner” ingredients, while others have curated a special selection of “clean” products to offer their customers. Advertisers’ efforts, however, can run into trouble if consumers reasonably believe the “clean” labeling does not match what is contained in the product. Sephora recently faced this issue in a purported class action challenging its “Clean at Sephora” seal. However, Judge David Hurd of the Northern District of New York dismissed the claims, finding the plaintiff had failed to adequately allege what exactly a reasonable consumer would find misleading about the seal. Finster v. Sephora USA, Inc., No. 22-cv-1187 (N.D.N.Y. Mar. 15, 2024).
Sephora, a cosmetic goods retailer, labels certain of its brands and products with the “Clean at Sephora” seal if they meet certain criteria set by Sephora. According to information on Sephora’s website, the “Clean at Sephora” seal signifies that a product complies with certain requirements focused on transparency in formulation and sourcing, as well as the avoidance of certain ingredients. For example, all “Clean at Sephora” products are formulated without parabens, sulfates, SLS and SLES, phthalates, mineral oil, formaldehyde, and other undesirable ingredients.
In Finster, the plaintiff claimed she bought certain products from Sephora in reliance on the “Clean at Sephora” seal believing that the products were “clean.” However, plaintiff claimed that Sephora’s representation mislead her because, contrary to her understanding, some “Clean at Sephora” products nonetheless contain alleged synthetic and harmful ingredients. In support of this allegation, plaintiff cited a laundry list of synthetic ingredients found in “Clean at Sephora” cosmetics she alleged were known to cause irritation or other human harm.
Judge Hurd disagreed, finding that plaintiff had failed to allege that a reasonable consumer would understand the “Clean at Sephora” label to mean that the products contained no synthetic or harmful ingredients whatsoever. The Court noted that none of the “Clean at Sephora” marketing materials cited by the plaintiff made any representation that those products were free of all synthetic or harmful ingredients—indeed, the advertising cited by the plaintiff explicitly said that products bearing the “Clean at Sephora” seal were formulated without specific ingredients known to be harmful to human health or the environment. Further, the Court found that the plaintiff had not alleged the purported harmful ingredients she claimed were in “Clean at Sephora” products were among those Sephora said were excluded. As such, the plaintiff had failed to allege Sephora materially misled consumers by selling “Clean at Sephora” products.
This case serves as a reminder to carefully scrutinize claims of consumer deception which rely on interpretations of advertising that run counter to definitions provided by marketers. Courts will dismiss claims of consumer deception where a plaintiff relies solely on his or her unreasonable understanding of a challenged term.
Summer Associate, Gabriella Lee, assisted with writing this post.
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Nothing Fishy About Whole Foods’ Fish Oil Supplement Product Label
In line with prior precedent, the Second Circuit recently affirmed that the product label for Whole Foods’ fish oil softgel product did not deceptively misstate the quantity of Omega-3s it contained. Foster v. Whole Foods Market Group, Inc., No. 23-285-cv (2d Cir. Dec. 8, 2023). The Court found that because the front label was merely ambiguous, rather than misleading, the challenged claim was not deceptive because reference to the back label would quickly dispel the plaintiff’s alleged confusion.
In Foster, the plaintiff alleged she was deceived into believing Whole Foods’ fish oil softgel product contained 1000mg of Omega-3s based on the close proximity of the statement “Omega-3s EPA & DHA” above the statement “1000mg Per Serving” on the front label. However, the back label revealed that the product actually contained 1000mg of fish oil, and just 300mg of Omega-3s. In affirming dismissal, the Court noted the product’s front label included four subsidiary statements: (1) “Omega-3s EPA & DHA;” (2) “1000mg Per Serving;” (3) “From Small Cold-Water Fish;” and (4) “Molecularly Distilled.” The Court acknowledged that while these statements were all in close proximity, the plaintiff had failed to adequately allege that a reasonable consumer would read “1000 mg Per Serving” only in conjunction with the first line referencing Omega-3s, rather than reading each of the subsidiary lines to independently describe the principal label, “Fish Oil.” As such, the Court found the plaintiff did not adequately allege a reasonable consumer would be misled.
The Court distinguished this case from its prior holding in Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. 2018), which had reversed the dismissal of a false advertising case at the pleading stage. In Mantikas, the Second Circuit held that clarifying information on the back label cannot not overcome “clearly inaccurate” factual representations on the front label. Here, the Court found Mantikas did not apply because the product label did not include an “affirmatively inaccurate” statement. Rather, because the challenged claim was at most ambiguous, the additional language on the back label of the product could be considered to clarify any arguable ambiguity on the front.
The ruling in Foster confirms that where a challenged label claim is merely ambiguous, rather than misleading, a product’s front and back labels may both be used to inform consumers regarding the qualities of that product. This is in line with precedent in other Circuits, including recent decisions from the Ninth Circuit.
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