Proskauer on Advertising Law
Proskauer on Advertising Law

Second Circuit Affirms Dismissal of Truffle Kerfuffle

Last year, we wrote about Jessani et al v. Monini North America, a case in the Southern District of New York in which the court dismissed as a matter of law plaintiffs’ complaint alleging that Monini falsely advertised its “White Truffle Flavored Extra Virgin Olive Oil” product as containing actual white truffle. The case turned on a reasonable consumer’s takeaway from the product label, which represented that the product was “white truffle flavored” and depicted a sliced white truffle on the front label, but nowhere stated that it contained white truffle. Notably, truffles were not listed on the ingredient list.

Proskauer’s Larry Weinstein and Jeff Warshafsky represented Monini before both the Southern District of New York and the Second Circuit. Jeff argued the Second Circuit appeal on October 22, 2018. This past Monday, the Second Circuit panel unanimously affirmed the lower court’s ruling in favor Monini. Jessani et al v. Monini North America, 2018 WL 6287994, (2d Cir. Dec. 3, 2018).

The Second Circuit squarely rejected plaintiffs’ contention that whether a reasonable consumer is likely to be misled by a product label is not appropriate for resolution on a motion to dismiss. The Court held that courts can in appropriate circumstances determine as a matter of law that an advertisement would not mislead reasonable consumers, and agreed with the District Court that reasonable consumers would not have been misled by Monini’s label because the label merely represented that the product is “white truffle flavored” and truffles are not listed on the ingredient list.

Critical to the decision was plaintiffs’ concession that white truffles are “the most expensive food in the world” and are highly perishable, combined with the undisputed fact that defendant’s product was modestly priced and mass produced:

In this context, representations that otherwise might be ambiguous and misleading are not: it is simply not plausible that a significant portion of the general consuming public acting reasonably would conclude that Monini’s mass produced, modestly-priced olive oil was made with “the most expensive food in the world.”

Id. at *1 (internal citation and footnotes omitted).

The Second Circuit’s decision affirms that manufacturers are free to identify their product’s characterizing flavor – and even may depict it visually as Monini did with a large image of a sliced white truffle on the front label – provided that the label is clear, when viewed in context, as to what ingredients are contained in the product.

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Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at lweinstein@proskauer.com /212-969-3240 or akaplan@proskauer.com /212-969-3671.  We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.

Ninth Circuit Affirms Jury Verdict In Favor of Homeopathic Remedy for Flu-Like Symptoms

On November 8, 2018, the Ninth Circuit affirmed a jury verdict in a consumer class action deceptive advertising case in favor of Defendants Boiron Inc. and Boiron USA, Inc. (together, “Boiron”), the sellers of a homeopathic treatment for flu-like symptoms called Oscillococcinum (“Oscillo”).  Although the Ninth Circuit’s memorandum decision is marked “Not for Publication” and therefore is non-precedential under Ninth Circuit rules, the decision is still worth noting, as jury verdicts in class action false advertising cases are rare. Continue Reading

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

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

EDNY Sticks a Fork in Angus Steak Sandwich Class Action Complaint

A federal court in the Eastern District of New York recently dismissed a putative class action filed against Dunkin’ Brands alleging deceptive advertising with respect to its Angus Steak & Egg Breakfast Sandwich and Angus Steak & Egg Wake-Up Wrap. Judge Carolyn Amon dismissed the claims by out-of-state plaintiffs on jurisdictional grounds, and found the challenged product names were not misleading as a matter of law. The case clarified the standard that class-action plaintiffs must meet for the court to find specific personal jurisdiction, and demonstrated yet another court’s willingness to rule as a matter of law on whether advertising is misleading to a reasonable consumer. Continue Reading

Supreme Court Briefing Begins Over Equitable Tolling of Rule 23(f) Deadline

Our readers may recall that last year, the Supreme Court ruled that a plaintiff in a putative class action cannot subvert the discretionary nature of Rule 23(f) interlocutory review by voluntarily dismissing his case after denial of class certification to obtain an appeal from the denial of class certification as a matter of right.  We blogged about that decision here. Earlier this summer, the Supreme Court granted certiorari in yet another Ninth Circuit case involving Rule 23(f) interlocutory review. On August 20th, petitioner Nutraceutical Corp. filed its opening brief urging the Court to rule that district courts cannot equitably toll Rule 23(f)’s fourteen-day time period in which a party must seek immediate interlocutory review of an order denying or granting class certification. Continue Reading

Court Puts “FDA-Cleared” Complaint on Ice

The Central District of California recently dismissed, for the second time, a putative class action filed by two plaintiffs who claimed to have purchased Zeltiq Aesthetics, Inc.’s “CoolSculpting” fat-reduction treatments under the allegedly mistaken belief that the treatments had been “approved,” not just “cleared,” by the U.S. Food and Drug Administration. Continue Reading

Ninth Circuit Puts Restitution Claims to Rest in Discount Advertising Case

The Ninth Circuit recently addressed once again the common practice in outlet stores and other retail establishments of juxtaposing the price at which a fashion item is offered for sale with a higher price advertised as a former price, or as the supposed market value, of that item.  Chowning v. Kohl’s Dep’t Stores, 2018 WL 3016908, (9th Cir. 2018).  The most recent previous Ninth Circuit decisions addressing discount price advertising concerned the adequacy of pleadings at the motion to dismiss stage, and thus had limited relevance to the merits of those cases or their ultimate outcomes. Continue Reading

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