Lawrence Weinstein
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As discussed in our earlier post, on October 13, 2021, the FTC issued “Notice of Penalty Offenses” letters to more than 700 companies, placing them on notice of civil penalties up to $43,792 per violation if they use endorsements or testimonials in an unfair or deceptive manner. These letters are the first step for the … Continue Reading
Prompted by the proliferation of social media advertising that often blurs the line between authentic content and sponsored posts, the Federal Trade Commission last week sent more than 700 companies a Notice of Penalty Offenses warning them against the use of deceptive endorsements in their online advertising. The Notice advises recipient companies that engaging in … Continue Reading
Judge Richard Seeborg of the Northern District of California recently ruled in favor of Miyoko’s Kitchen in a suit concerning Miyoko’s labeling of its plant-based spread as “vegan butter.” In doing so, Judge Seeborg determined that absent evidence that the “vegan butter” label was false or would mislead consumers, the state of California could not … Continue Reading
A Third Circuit panel recently affirmed a Pennsylvania district court decision in favor of defendant Innovative Designs (“IDI”) in an advertising challenge by the FTC. We previously blogged about the district court decision, which found the FTC failed to present any credible expert testimony to support its claims. On appeal, the Third Circuit panel affirmed, … Continue Reading
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
We recently blogged about Champion Petfoods’ success in a Minnesota district court case alleging that it misrepresented the quality of its dog food and ingredients. Well, Champion Petfoods came back to defend its title in another case involving nearly identical allegations, this time in the Seventh Circuit. The Seventh Circuit recently affirmed a Wisconsin district … Continue Reading
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
Earlier this year, we blogged about the Supreme Court’s decision in AMG v. FTC, which significantly curtailed the FTC’s ability to seek monetary restitution under Section 13(b) of the FTC Act. One quick update there: The U.S. House of Representatives recently voted to restore the FTC’s Section 13(b) disgorgement powers. For now, though, in the … Continue Reading
Judge Victor Marrero of the Southern District of New York recently largely denied a motion to dismiss claims that Canada Goose misled consumers by representing that the fur on Canada Goose jackets is ethically and sustainably sourced. In doing so, the court determined plaintiff’s allegations were “thin,” but viewing the complaint in the light most … Continue Reading
In a unanimous precedential decision, a Ninth Circuit panel recently affirmed the dismissal of a putative class action against Trader Joe’s, which alleged that the statement “Up to 5% Retained Water” on Trader Joe’s poultry product labels was misleading. According to Plaintiff, her independent testing showed Trader Joe’s poultry products contained a higher percentage of … Continue Reading
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
The Eighth Circuit recently affirmed the dismissal of a class action alleging that Unilever’s differential pricing of men’s and women’s antiperspirants violated the Missouri Merchandising Practices Act (MMPA). In doing so, the Court found plaintiff’s claims wrongly equated marketing targeted to women with point-of-sale price discrimination by gender (i.e. charging a different price for the … Continue Reading
In a recent opinion out of the Southern District of New York, Judge William H. Pauley III certified three classes of plaintiffs in New York, California, and Florida who allege that KIND LLC, the manufacturer of KIND Bars, deceptively marketed several products as “all natural” and “non-GMO,” even though they purportedly contain synthetic and genetically … Continue Reading
Judge Joshua D. Wolson of the U.S. District Court for the Eastern District of Pennsylvania recently dismissed a Lanham Act suit that challenged critical comments on a blog (not this one!). The case was brought by plaintiff Crash Proof Retirement, a retirement investment adviser who was the subject of the criticism. The defendant author of … Continue Reading
The FTC recently held a workshop titled “Bringing Dark Patterns to Light,” a recording of which can be found at the following link. The workshop centered around exploring the effects of digital “dark patterns” on consumers and the marketplace. The term “dark patterns” refers to a range of potentially deceptive website design tactics that can … Continue Reading
A unanimous Supreme Court yesterday significantly curtailed the FTC’s ability to obtain the equitable monetary remedies of restitution and disgorgement of profits from entities accused of engaging in deceptive practices in violation of the FTC Act. In so holding, the Court drew heavily on its interpretation of the language and history of that statute in … Continue Reading
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
In a unanimous decision, the Supreme Court today held that Facebook’s “login notification” text messages (sent to users when an attempt is made to access their Facebook account from an unknown device or browser) did not constitute an “automatic telephone dialing system” within the meaning of the federal Telephone Consumer Protection Act (“TCPA”). In so … Continue Reading
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
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
The Fourth Circuit recently overturned a district court’s decision to apply an analogous state law statute of limitations to bar a claim for false advertising under § 43(a) of the Lanham Act. In doing so, the Court held that because § 43(a) claims are “equitable in nature,” laches is the applicable timeliness rule, rather than … Continue Reading
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
The Ninth Circuit recently affirmed the dismissal of a putative class action alleging Diamond Foods engaged in unfair practices, created a nuisance, and breached the warranty of merchantability by including partially hydrogenated oils as an ingredient in Pop Secret popcorn. McGee v. S-L Snacks Nat’l, Case No. 17-55577 (9th Cir. December 4, 2020). Plaintiff Jacquelyn … Continue Reading
With more than 100 closed cases, 2020 was another busy year at the National Advertising Division and National Advertising Review Board. Proskauer’s False Advertising Group closely tracks these decisions from the advertising industry’s self-regulation system to stay apprised of the latest developments and trends, and has compiled a guide providing case summaries, with our insights … Continue Reading
On Notice: Procedural Overview of the FTC’s Section 5 Penalty Offense Authority
By Lawrence Weinstein, Jennifer Yang and Timothy E. Burroughs on Posted in FTC, Regulatory
On Notice: FTC Issues Warning to Hundreds of Companies Regarding the Use of Fake Reviews and Other Misleading Endorsements in Online Marketing Campaigns
By Lawrence Weinstein, Jeff Warshafsky and Jessica Griffith on Posted in Announcements, Deceptive Trade Practices, FTC, Regulatory
“Butter” Luck Next Time: Court Finds California Cannot Preclude Vegan Dairy from Using “Vegan Butter” Labeling
By Lawrence Weinstein, Anisha Shenai-Khatkhate and Alyson Tocicki on Posted in Class Actions, Deceptive Trade Practices, FDCA, First Amendment, Labeling Claims
Third Circuit Affirms Decision to Reject FTC’s False Advertising Claims Against Housing Insulation Company
By Lawrence Weinstein, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Deceptive Trade Practices, Regulatory
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
“Champion” Petfoods: Seventh Circuit Affirms Dismissal of False Advertising Suit Against Pet Food Company
By Lawrence Weinstein, Jennifer Yang and Omobolaji Oluwasola on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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
Court Considers FTC’s Ability to Seek Monetary Relief Post-AMG
By Lawrence Weinstein, Jennifer Yang and Amy Gordon on Posted in Deceptive Trade Practices, Regulatory
More Than “Puffery”: Claims Against Canada Goose Survive Motion to Dismiss
By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
The Legal “Pecking Order”: Ninth Circuit Finds Poultry Labeling Claims Preempted
By Lawrence Weinstein, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Primary Jurisdiction/Preemption
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
Don’t Sweat It: 8th Circuit Affirms Dismissal of Deodorant Class Action
By Lawrence Weinstein, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices
Judge Looks “Kind”ly Upon Certifying Class in Snack Bar Advertising Suit
By Lawrence Weinstein, Jennifer Yang and Alyson Tocicki on Posted in Class Actions, Commonality Requirement, Deceptive Trade Practices, Labeling Claims, Regulatory
Judge Recommends Lanham Act Litigant “Shake it Off”
By Lawrence Weinstein, Anisha Shenai-Khatkhate and Nicole Sockett on Posted in Lanham Act
FTC Workshop: “Bringing Dark Patterns to Light”
By Lawrence Weinstein, Baldassare Vinti, Jennifer Yang, Nicole Sockett and Jessica Griffith on Posted in Deceptive Trade Practices, Regulatory
Supreme Court Curtails FTC Power to Seek Restitution in Court
By Lawrence Weinstein, Jeff Warshafsky and Jessica Griffith on Posted in Deceptive Trade Practices, Regulatory, Supreme Court
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
Supreme Court “Unfriends” Ninth Circuit Decision Applying TCPA to Facebook
By Lawrence Weinstein, Anisha Shenai-Khatkhate and Jessica Griffith on Posted in Class Actions, Supreme Court
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
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
Fourth Circuit La(t)ches On to Timeliness of § 43(a) Lanham Act Claims
By Lawrence Weinstein, Jennifer Yang and Nicole Sockett on Posted in Lanham Act
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
Not a Kernel of Standing: Ninth Circuit Affirms Dismissal of Complaint Against Pop Secret
By Lawrence Weinstein, Jeff Warshafsky and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices
Key 2020 Decisions from the NAD and NARB
By Lawrence Weinstein, Baldassare Vinti, Jeff Warshafsky, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Announcements, NAD/NARB/CARU/ERSP
