Proskauer on Advertising Law
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Category Archives: Class Actions

Decisions and trends in false advertising class actions.

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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. § … Continue Reading

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 … Continue Reading

Game Over: Court Dismisses Class Action Lawsuit Over Gaming Computer Performance

By Baldassare Vinti, Anisha Shenai-Khatkhate and Nicole O. Swanson on Posted in Class Actions, Deceptive Trade Practices
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 … Continue Reading

What’s in a Word? The Legal Battle over “Natural” in False Advertising

By Baldassare Vinti, Jennifer Yang and Evelyn Blanco on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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 … Continue Reading

Reasonable Consumer Analysis Leads to Dismissal of Claims of Greenwashing

By Baldassare Vinti, Jeff Warshafsky and Jessica Griffith on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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 … Continue Reading

Nothing Fishy About Whole Foods’ Fish Oil Supplement Product Label

By Baldassare Vinti, Jessica Griffith and Marielle T. LaBerge on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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 … Continue Reading

Courts Neutralize Baseless Acid Lawsuits

By Jeff Warshafsky on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Over the last few years, hundreds of lawsuits have been filed, and many more threatened, involving advertising claims that a product has no artificial preservatives or flavors.  In many cases, the plaintiffs allege such advertising claims are false because the products contain citric acid, malic acid, or other organic acids and natural ingredients. Plaintiffs in … Continue Reading

That’s a “Wrap”: Second Circuit Upholds Click-Wrap Mandatory Arbitration Provision

By Baldassare Vinti, Jeff Warshafsky, Jennifer Yang, Anisha Shenai-Khatkhate and Jana R. Ruthberg on Posted in Arbitration Clause, Class Actions
This past Friday, the Second Circuit reversed a lower court’s denial of a motion to compel arbitration in a putative consumer class action against fintech company Klarna.  Edmundson v. Klarna,  Inc., Case No. 22-557-cv (2d Cir. Nov. 3, 2023). The panel upheld the enforceability of Klarna’s “click-wrap” mandatory arbitration provision incorporated in Klarna’s terms and … Continue Reading

Sweet (But Not Too Sugary) Victory: Court Dismisses Lawsuit Over Sprout Foods Baby Food Labeling

By Baldassare Vinti, Jennifer Yang and Isaiah D. Anderson on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Richard Seeborg of the Northern District of California recently dismissed a putative class action alleging that Sprout Foods’s nutritional claims on its baby and toddler food labels misled consumers into believing that the products provide physical health benefits.  In their complaint, plaintiffs alleged that the products are “harmful both nutritionally and developmentally” due to … Continue Reading

Sheep’s Clothing: Court Dismisses Lawsuit Over Allbirds’ Carbon Footprint and Animal Welfare Claims

By Baldassare Vinti, Jennifer Yang and Amy Gordon on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Cathy Seibel of the Southern District of New York recently dismissed a putative class action lawsuit challenging various environmental impact and animal welfare claims made by Allbirds in ads for its wool shoes.  In doing so, the court determined that plaintiff’s allegations, which largely consisted of criticisms of the wool industry in general, did … Continue Reading

Advertising Class Action Trends in 2021

By Baldassare Vinti, Jeff Warshafsky, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
2021 saw well over 500 new class actions in the advertising space. With the number of these cases increasing, it is more important than ever for businesses to stay on top of the latest trends, including the types of products and claims that are being targeted.  Our full report, available here, goes into detail on … Continue Reading

Crypto Chaos: EthereumMax Executives, Kim Kardashian, Floyd Mayweather, Jr., and Paul Pierce Sued in Cryptocurrency Advertising Class Action

By Baldassare Vinti, Anisha Shenai-Khatkhate and Reut N. Samuels on Posted in Class Actions, Deceptive Trade Practices
Cryptocurrency, social media, and celebrity or influencer endorsements have all been top of mind recently, including for advertisers. A newly filed lawsuit is asking a federal court to consider the intersection of these areas, with potential implications for advertisers looking to expand into the cryptocurrency space. EthereumMax executives (“Executive Defendants”) and a few well-known celebrities, … Continue Reading

Instant Dismissal: Court Dismisses Instant Oatmeal Case against Whole Foods Market

By Baldassare Vinti, Jeff Warshafsky and Reut N. Samuels on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Rachel Kovner of the Eastern District of New York recently dismissed a putative class action challenging Whole Foods Market’s label claims that its Oats & Flax Instant Oatmeal contains “dehydrated cane juice solids” and is “100 % Whole Grain – 18g or more per serving.” Plaintiffs alleged these labels communicate that the oatmeal is … Continue Reading

“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
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

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
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

“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
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

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
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

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
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

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
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 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
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

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
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

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
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

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
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
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