Proskauer on Advertising Law
Proskauer on Advertising Law

California SB 343 Enforcement Preliminarily Enjoined: Regulation of Chasing Arrows and Recyclability Claims Escaping Enforcement (For Now)

By Baldassare Vinti, Jeff Warshafsky, Jennifer Yang and Jana R. Ruthberg on Posted in Labeling Claims

Months before California’s new recyclability-labeling law was set to take effect, the Southern District of California preliminarily enjoined the State Attorney General from enforcing SB 343, closely watched legislation regulating when companies may use the chasing-arrows symbol or other recyclability claims on products and packaging. California League of Food Producers v. Bonta, No. 3:26-cv-01675-WQH-BLM (S.D. Cal. July 14, 2026).

The recyclability labeling restrictions of SB 343, set to go into effect on October 4, 2026, were purportedly designed to combat consumer confusion and “greenwashing” by establishing statewide criteria for recyclability claims. Under the law, products or packaging using recyclability symbols, statements, or recycling instructions are deemed deceptive unless they satisfy California’s recyclability standards, including the so-called “60/60 requirement”: the material must be collected by recycling programs covering at least 60% of California’s population and sorted by facilities serving at least 60% of recycling programs statewide.

A coalition of trade associations in California challenged the law under the First and Fourteenth Amendments, arguing that the requirements of SB 343 were unconstitutionally vague, and infringed on businesses’ free speech rights by forcing them to remove truthful recyclability claims and leave consumers with less useful disposal information. The Court agreed that plaintiffs were likely to succeed on both grounds and preliminarily enjoined the State Attorney General and those in privity or acting in concert with him from enforcing SB 343 until further order of the Court.

The Court found that SB 343 likely violates the First Amendment’s protections for commercial speech. Although California has legitimate interests in reducing consumer confusion and improving recycling rates, the Court held that the State had not shown that SB 343 would actually advance those goals. Instead, the record suggested the law could have the opposite effect: companies might remove recyclability claims altogether—including truthful, qualified claims—rather than undertake costly packaging redesigns or risk liability.

The Court was especially concerned that SB 343 swept broadly enough to restrict useful statements such as “recyclable where facilities exist” or component-specific recycling instructions. That breadth, the Court reasoned, was more extensive than necessary, particularly where narrower disclosures could address consumer confusion without suppressing accurate information.

On vagueness, the Court found several key provisions insufficiently clear, including SB 343’s requirements that businesses understand (1) whether materials “routinely become feedstock used in the production of new products or packaging,” (2) whether materials will be sent to a reclaiming facility “consistent with the requirements of the Basel Convention,” (3) whether materials contain elements that “prevent the recyclability of the packaging according to the APR Design® Guide published by the Association of Plastic Recyclers,” and (4) whether products and non-plastic packaging are “designed to ensure recyclability” and do not “include any components . . . that prevent [] recyclability.”  In the Court’s view, those standards left manufacturers guessing about downstream recycling practices, shifting market conditions, evolving private standards, and information they may have no practical way to obtain.  The Court did find that each of these challenged provisions was grammatically severable from the remaining text of the bill, but given its finding on the likelihood of success on the merits of plaintiffs’ First Amendment challenge, the Court preliminarily enjoined the enforcement of SB 343 in its entirety.

This decision marks a significant development in the enforcement of California’s closely-watched legislation on recyclability claims.  However, it does not invalidate SB 343, and we will continue to monitor the case for further developments, including any appeal and motion to stay the preliminary injunction.  We also invite you to reach out to us at bvinti@proskauer.com, jwarshafsky@proskauer.com, and jyang@proskauer.com to discuss the practical significance of this decision for your business in the weeks leading up to (and after) SB 343’s restrictions are due to take effect.

Tags: California, greenwashing

“Comprehensive Nutrition” Deemed Puffery – Consumers Understand You Can’t Eat Gummies for Dinner, Court Confirms

By Baldassare Vinti, Craig Whitney, Jeff Warshafsky, Jennifer Yang and Jana R. Ruthberg on Posted in Class Actions

The Southern District of New York recently dismissed a putative class action challenging the marketing of Grüns Nutrition’s “Superfood Greens Gummies.” In a detailed opinion, Judge Liman found that the company’s core messaging around “comprehensive nutrition” was either obvious puffery or too ambiguous—once read in context—to mislead a reasonable consumer. Cavallaro-Kearins v. Grüns Nutrition Inc., No. 25-cv-4998 (LJL) (S.D.N.Y. May 19, 2026).

The plaintiffs alleged that Grüns built its brand around the idea that its gummies were an “all-in-one” solution: a substitute for other supplements, and in some instances even for fruits and vegetables. According to the complaint, that message was false because the products lack key nutrients such as protein, fat, and certain minerals, and therefore cannot deliver what consumers would expect from “complete” or “comprehensive” nutrition.

The Court was unconvinced. Judge Liman began with the most literal reading of “comprehensive nutrition”—that the gummies provide all nutrients necessary to sustain life. A reasonable consumer, the Court observed, of course would not believe that a small packet of gummy supplements could replace all food intake or eliminate the need for a balanced diet. Read that way, the phrase is plainly exaggerated and therefore non-actionable puffery. The opinion underscores a familiar principle: when a claim is so sweeping that it becomes implausible on its face, courts are unlikely to treat it as a concrete, factual representation.

The Court further reasoned that consumers are expected to look beyond a sweeping front-of-the-label statement to look at the claim and label as a whole. And here, that broader context proved decisive. The packaging and accompanying disclosures explained what the gummies actually contain—vitamins, minerals, fiber, and various plant-based ingredients—and, just as importantly, what they do not contain. The Court held that these additional details were sufficient to dispel any potential confusion.

One narrow category of claims, however, gave the court some pause. Plaintiffs alleged that Grüns had marketed its gummies to consumers using GLP-1 medications with claims suggesting that the product could help address nutritional gaps associated with those drugs. The Court found that a reasonable consumer could interpret these claims, which were arguably more targeted and concrete, as representing that GLP-1 users face identifiable deficiencies and that the gummies are designed to fill those specific gaps. Even so, that theory ultimately fell short. The Court held that plaintiffs did not adequately allege what those supposed deficiencies are or how the product fails to address them. The Court therefore dismissed that claim as well, although without prejudice.

The decision reinforces that courts remain skeptical of attempts to recast puffery as actionable misrepresentations, even where plaintiffs allege that the case implicates health and wellness claims.

Tags: Marketing, Puffery, SDNY

Canceled Before It Clicked: Eighth Circuit Strikes Down FTC’s Click-to-Cancel Rule

By Baldassare Vinti, Jennifer Yang and Alyson Tocicki on Posted in Class Actions, FTC, Regulatory

Just days before it was set to take effect, the U.S. Court of Appeals for the Eighth Circuit struck down the Federal Trade Commission’s (FTC) much anticipated “Click-to-Cancel Rule” (the “Rule”), delivering regulatory whiplash to companies that had proactively geared up for the Rule’s arrival. As previously reported, the Rule sought to impose various requirements for subscription-based services, including clear and conspicuous disclosures, informed consent, and simple cancellation processes.

The Eighth Circuit’s decision hinged on its finding of a procedural deficiency: namely, that the FTC failed to conduct a preliminary regulatory analysis, which is required when a proposed rule is expected to have an annual economic impact exceeding $100 million. The agency had estimated the impact would fall below that threshold, but an Administrative Law Judge (ALJ) later disagreed. The Eighth Circuit found that following the ALJ determination, the FTC should have conducted its preliminary regulatory analysis. Without having done so, the Court found that stakeholders were denied a meaningful opportunity to comment on the Rule.

This ruling, while significant, may not have the far-reaching practical impact one might expect. The FTC may seek review by the Supreme Court or restart the rulemaking process with the requisite preliminary analysis.  But even if it does not do so, companies offering subscription-based services remain subject to other existing laws that impose many of the same (and sometimes additional) requirements as the now stricken Rule, including expansive state autorenewal laws. Autorenewal practices also continue to be a focus area for FTC enforcement actions under the Restore Online Shoppers’ Confidence Act (ROSCA) and Section 5, as well as for State AGs, and in consumer class actions.

Proskauer’s interdisciplinary team is at the forefront of navigating complex regulatory developments affecting subscription-based and consumer-facing businesses. We advise clients across industries on compliance with FTC regulations, state autorenewal laws, and evolving consumer protection standards. Whether assessing the impact of new rules, responding to agency enforcement, or defending class action litigation, we bring deep experience and strategic insight to help clients mitigate risk and stay ahead of the curve.

Tags: Class Action, Click-to-Cancel Rule, Eighth Circuit, Federal Trade Commission (FTC), Negative Option Rule

Subscription Shake-Up: Navigating the FTC’s Click-to-Cancel Rule

By Baldassare Vinti, Jennifer Yang, Alyson Tocicki and Naomi Caldwell on Posted in Class Actions, FTC, Regulatory

In October 2024, the Federal Trade Commission (“FTC”) updated its 1973 Negative Option Rule to address unfair and deceptive online subscription practices. See 16 C.F.R. § 425 (2024) (the “Negative Option Rule” or the “Rule”). The Rule sparked significant debate, with the original proposal garnering over 16,000 comments. Following some revisions based on this feedback, the Rule went into effect in January 2025. Originally slated for enforcement on May 14, the FTC announced on May 9 that enforcement would be deferred by 60 days, giving businesses until July 14, 2025 to review and comply. This post outlines key aspects of the updated Rule and how companies can reduce legal and reputational risk. Continue Reading

Tags: Class Action, Click-to-Cancel Rule, Eighth Circuit, Federal Trade Commission (FTC), Negative Option Rule

S.D.N.Y. Waters Down Prior Ruling on “Carbon Neutral” Consumer Deception Claim

By Baldassare Vinti, Jeff Warshafsky and Naomi Caldwell on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims

The Southern District of New York recently reconsidered its partial denial of Defendant Danone Waters of America’s motion to dismiss claims alleging Danone falsely advertised Evian water as “carbon neutral.” Reversing his prior ruling, Judge Nelson S. Román concluded that the carbon neutral labeling on Evian water bottle products was not plausibly misleading to reasonable consumers. He reasoned that absent an industry convention of disclosure on the front label or governing regulation that says otherwise, a reasonable consumer should be expected to look beyond the front label to learn more, consult additional information available, and know that there is no such thing as a “carbon zero” product. Dorris v. Danone Waters of America, No. 22-CV-8717 (S.D.N.Y. Nov. 14, 2024).

The Evian water bottle products at issue included a label claim that the products are “Carbon Neutral,” as well as a logo for “Carbon Trust,” a third-party agency that relies on the international PAS standard in certifying whether a company or product is carbon neutral. Plaintiffs alleged this carbon neutral labeling on Evian water bottles was a form of “greenwashing,” which misled them to believe that “the Product’s manufacturing did not produce CO2 or otherwise cause pollution.”

The Court initially granted Danone’s motion to dismiss consumer deception claims under New York law, but denied its motion to dismiss claims brought under Massachusetts and California law. Reasoning that the term “carbon neutral” was “an ambiguous term that lacked precision and could plausibly mislead a reasonable consumer,” the Court held that under Massachusetts and California law, it would be premature to determine as a matter of law that a reasonable consumer could not be misled. In its reconsideration opinion, the Court reversed course and dismissed the balance of Plaintiffs’ claims (with leave to amend).

The Court retracted the previous weight it gave to Plaintiffs’ argument that “carbon neutral” was an unqualified general environmental benefit claim prohibited by the FTC Green Guides. On reconsideration, the Court differentiated “carbon neutral” from the types of general environmental benefit claims identified in the Green Guides such as “eco-friendly,” “greener,” “eco-smart,” and “environmentally friendly,” finding that those claims seemed “more general and vaguer” than the term “carbon neutral.” The Court pointed out that, unlike those more general environmental claims, the Merriam-Webster dictionary includes “only two codified definitions of ‘carbon neutral,’ which does not include carbon zero.” Thus, the Court “presume[d] without holding that ‘carbon neutral’ is not a general environmental claim.”

The Court noted that the FTC Green Guides are unclear in how they treat “carbon neutral” claims and there is no other industry convention or governing regulation that provides assurances to consumers about the veracity or clarity of the front label claim. Therefore, the Court reasoned, consumers should have consulted the back label, which provided “a link to Evian’s website to learn more.” On the website, Danone explains that “carbon neutral” means “contributing to reduce our emissions day after day” and “emissions that remain are then offset through our work with Livelihood Funds that has planted 130 million trees.” Evian’s website also provided a link on the website to Carbon Trust’s website, which provided a fuller explanation of the certification process and relevant standards. The Court held that these types of disclosures “mitigate[d] concerns of consumers being misled at the point of sale.” The Court further noted that the back label of the products disclosed that Evian water was sourced from the French Alps, which would have put a reasonable consumer on notice that the products could not have been produced without carbon emissions and a reasonable consumer would have looked to other sources of information for further clarity.

Advertisers are collectively breathing a sigh of relief at this decision. The prior decision effectively placed a blanket prohibition on making “carbon neutral” claims without onerous front label disclosures since, of course, no product can be produced without generating any carbon. The reconsideration decision may cause plaintiffs’ lawyers to reconsider bringing similar claims against other companies going forward, and gives advertisers some reassurance that in the event of a challenge courts appear to understand the limits of “carbon neutral” claims. With that said, including appropriate disclosures with “carbon neutral” claims remains critical to avoid conveying a broader or different message than intended.

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Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at bvinti@proskauer.com /212-969-3249

Privacy Class Action Spotlight: Surge of Privacy Class Actions in Arizona Targeting Email Pixel Tracking

By Leslie Shanklin, Jeff Warshafsky, Aaron Francis and Anna W. Chan on Posted in Class Actions, Regulatory

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.

Read the full post on the Proskauer on Privacy blog.

Tags: Arizona Telephone_Utility and Communication Service Records Act, California Invasion of Privacy Act (CIPA), Privacy, privacy class action, Privacy Law, State Privacy Laws, Telephone Records and Privacy Protection Act

Amid Rise in Forever Chemicals Cases, Courts Dismiss PFAS Claims Which Rely on Inadequate Product Testing

By Baldassare Vinti, Jessica Griffith, Nicole Sockett and Michael Beckwith on Posted in Class Actions, Deceptive Trade Practices

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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Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at bvinti@proskauer.com /212-969-3249

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