While California historically has a reputation as the most plaintiff-friendly forum for alleged consumer class action deceptive advertising cases, Florida is emerging as stiff competition for the title after a recent trio of orders denying motions to dismiss consumer fraud actions emerged out of the United States District Court for the Southern District of Florida.

Luxury beauty brand Clarins will be defending efficacy claims with respect to two of its skin creams after District Judge Paul C. Huck denied, in part, a motion to dismiss in Garcia v. Clarins USA Inc. et al. on September 4, 2014.  Although the Court limited plaintiff’s complaint to the two products she actually purchased, rather than allowing her to proceed as a putative class representative for the full “line” of both products, the Court refused to dismiss the suit, which alleges that defendants deceived customers through a sophisticated marketing campaign that promised to “firm and tone skin, restore deep luminosity” and “boost microcirculation to ensure waking to a healthy-looking and revitalized complexion” when allegedly, none of the ingredients in the products, either alone or in combination, could provide such benefits.

Beer giant Anheuser-Busch also had limited success in the district, knocking out only an injunctive relief claim after Magistrate Judge John J. O’Sullivan rendered his opinion in Marty et al. v. Anheuser-Busch Cos. on September 5.  Plaintiffs’ claims that they had been misled into believing that Beck’s is still brewed in Germany, despite statements on the cans and bottles specifying that this was a “Product of USA,” were deemed sufficient to state a claim under California, New York and Florida’s consumer protection laws.

Johnson & Johnson achieved a similar disappointing result before District Judge Robert N. Scola Jr. in Lombardo v. Johnson & Johnson Consumer Cos. Inc. et al. on September 9.  Although the Court sided with J&J to the extent it trimmed the injunctive relief claim from the complaint, it left intact the remainder of plaintiff’s attack under Florida’s consumer protection law regarding the advertising and labeling of certain J&J sunscreens.  Although the FDA recently promulgated a rule that prohibits labels from claiming that a sunscreen is “sunblock”, “waterproof”, “sweatproof” or that it provides “continuous” protection, the Court found that plaintiff’s claims, which were limited to products purchased before the rule was enacted, were not preempted.  The Court also found that plaintiff’s challenge to J&J’s SPF claims were not preempted where, even if plaintiff prevailed, sunscreen manufacturers could still comply with FDA labeling regulations for sunscreen by labeling sunscreen with SPF values based on testing results, but simply would not be able to claim that certain higher SPF values provide significantly greater protection.

Watch this space as we continue to monitor these emerging trends.


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.