Proskauer on Advertising Law
Proskauer on Advertising Law

Category Archives: Deceptive Trade Practices

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Plaintiff Fails to Butter Up Court with Mashed Potato Suit

We have previously written about decisions addressing food product labels, and the messages that these labels convey about the products’ ingredients. In Jessani v. Monini, the Second Circuit found that a product label for “white truffle flavored” olive oil did not imply that the product contained actual white truffles. Not long afterwards, the Second Circuit … Continue Reading

Court Lets Trader Joe’s Out of Sticky Situation Over Honey Advertising

A magistrate judge in the Northern District of California recently dismissed a putative class action alleging that Trader Joe’s misled its consumers about the purity of its manuka honey.  Moore v. Trader Joe’s Co., No. 4:18-CV-04418-KAW, 2019 WL 2579219 (N.D. Cal. June 24, 2019). Plaintiffs commenced a putative class action lawsuit alleging that Trader Joe’s … Continue Reading

En Banc Ninth Circuit Reinstates and Clarifies Standard for Nationwide Class Action Settlement

Last month, the Ninth Circuit sitting en banc affirmed, by an 8–3 vote, a nationwide class settlement of a multidistrict litigation against automakers Kia and Hyundai over alleged misrepresentations regarding certain vehicles’ fuel efficiency. In re Hyundai and Kia Fuel Economy Litigation, 15-56014 (9th Cir. 2019). The en banc decision overturned the controversial decision last … Continue Reading

NAD Not Influenced by Verification Platform’s Claims

In a recent decision, the advertising industry self-regulatory body NAD recommended that influencer marketing firm Ahalogy tone down some of its claims about the capabilities of its new product, the Tri-Verified influencer marketing platform. The decision comes at a time when influencer marketing is becoming an increasingly popular— and challenging—field. Influencer marketing is what the … Continue Reading

Suit Over Use of American Heart Association Certification Mark Maintains a Pulse

Is it deceptive to label food products with the mark of the American Heart Association (“AHA”) without disclosing that the AHA was paid for use of its certification mark? This was the question raised by a putative class action lawsuit in the Northern District of New York, which largely survived dismissal on March 25, 2019. … Continue Reading

Justin Timberlake Waves Bai Bai Bai to Partially Dismissed “No Artificial Flavors” Beverage Mislabeling Suit

Last month, a judge in the Southern District of California partially dismissed a putative class action against beverage company Bai Brands, LLC (“Bai”) and related defendants. Branca v. Bai Brands, LLC, No. 18-00757 (S.D. Cal. 2019). Plaintiff Kevin Branca filed this lawsuit against Bai, its parent company Dr. Pepper Snapple Group, Inc. (“DPSG”), the CEOs of … Continue Reading

California Court Sours on Starbucks Gummies Lawsuit

Several months ago we covered two Second Circuit decisions that addressed false advertising claims related to ingredients and product labeling of foods, which reached differing results. Applying similar principles, a recent decision from the Southern District of California found that Starbucks’ packaging for its sour gummy candies did not reasonably suggest that the candies were … Continue Reading

Ninth Circuit Denies Review of Class Certification in Beer Labeling Brouhaha

In a 2-1 decision memorialized in a one-page order, a Ninth Circuit panel recently denied Kona Brewing’s request for leave to appeal a grant of class certification to a consumer class claiming that the company’s branding deceptively communicated the false message that Kona beer is brewed in Hawaii. Broomfield v. Craft Brew Alliance, No. 18-80145 … Continue Reading

Ninth Circuit Sends Brain-Booster Claim Case Back to District Court

After Ninth Circuit review, it remains to be seen whether a nutritional supplement maker can claim that ginkgo biloba leaf extract and vinpocetine supplements improve “alertness,” “mental clarity, and memory” in the face of contradictory scientific studies. In Korolshteyn v. Costco Wholesale, No. 17-56435 (2019), the Ninth Circuit reversed a district court order granting summary judgment in favor … Continue Reading

If Class Action Litigants Could Turn Back Time (The Text Would Have Said So)

Last week, the Supreme Court unanimously reversed a Ninth Circuit decision, resolving a circuit split in ruling that Federal Rule of Civil Procedure 23(f)’s 14-day deadline for a losing party to file a petition for permission to appeal an order granting or denying class certification is not subject to equitable tolling. Nutraceutical Corp. v. Lambert, … Continue Reading

Nestlé’s Non-Disclosure of Child and Slave Labor Issues on Packaging Not Deceptive or Unfair, Massachusetts Federal Court Holds

Though child and slave labor is “widespread, reprehensible, and tragic,” a federal court in the District of Massachusetts found it was not deceptive for Nestlé to omit from product labels that those practices (allegedly) exist in its supply chain. In granting defendant Nestlé’s motion to dismiss, the court, after assuming that plaintiff’s allegations are true, … Continue Reading

SDNY Judge Not Sweet on Dannon’s Bid for a Preliminary Injunction

In a battle of leading yogurt beverage makers, Chief Judge Colleen McMahon of the U.S. District Court for the Southern District of New York recently denied Dannon’s application for a preliminary injunction in its false advertising suit against Chobani. The result of Judge McMahon’s decision is that Chobani can continue to sell its yogurt drinks … Continue Reading

Kimberly-Clark Unable to Flush Wet Wipes Case

On December 10, 2018, the Supreme Court denied certiorari in Kimberly-Clark Corp, v. Davidson, No. 18-304 (2018), in which Kimberly-Clark sought to overturn a controversial Ninth Circuit decision allowing a plaintiff in a false advertising case to seek injunctive relief on behalf of an alleged consumer class notwithstanding that plaintiff’s complaint acknowledged she was aware … Continue Reading

Failure to Disclose Claims Washed Away in Facial Scrub Case

On December 17, 2018, Judge Andrew J. Guilford in the U.S. District Court for the Central District of California granted defendant Unilever’s motion for summary judgment, dismissing all claims in a putative class action concerning St. Ives Apricot Scrub. Browning v. Unilever United States, Inc., 2018 WL 6615064 (C.D. Cal. Dec. 17, 2018). Plaintiffs alleged … Continue Reading

Cheez-Its Class Action Revived in “Whole” by Second Circuit

We recently blogged about the Second Circuit’s December 3, 2018 decision in Jessani v. Monini, where, applying the reasonable consumer standard, the Court of Appeals unanimously affirmed the dismissal with prejudice of a complaint alleging that the label of an extra virgin olive oil product advertised as “truffle flavored” falsely implied that the product contained … 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 … Continue Reading

Diet Soda Lawsuit Fizzles Out

Recently, a plaintiff’s purported class action against Diet Dr. Pepper went flat when a California federal judge held that the term “Diet” alone on a soft drink label does not constitute a claim that the soft drink will assist in weight loss. In Becerra v. Dr. Pepper/Seven Up, Inc., Plaintiff Shana Becerra brought a putative … Continue Reading

New Trial Ordered Where Jury’s Verdict Didn’t “Gel”

Last summer, we reported on a bizarre verdict in which an Illinois jury levied a $150 million punitive damages award against AbbVie, Inc., the drug company behind AndroGel, without awarding any compensatory damages.  As predicted, the punitive damages award was recently vacated.  Finding that the jury’s findings were “logically incompatible,” the Court vacated the punitive … Continue Reading

Third Circuit Splits with the Seventh Over Standing To Sue For Alleged Inefficient Design of Eye Drop Dispenser

In a surprising decision and split with the Seventh Circuit, the Third Circuit recently held that plaintiffs have standing to sue for unfair trade practices under the theory that a manufacturer is obligated to optimize the number of eye drop doses in a container of a fixed volume, even if there is no alleged misrepresentation … Continue Reading

Second Circuit Dismisses Claims of Would-Be Ad-Blockers

On November 22, 2017, the Second Circuit in Heskiaoff v. Sling Media affirmed the dismissal of a class action complaint against Sling Media that alleged deceptive business practices in connection with Sling’s introduction of advertisements into its television streaming service.  In a summary order, the panel affirmed the district court’s holding that the complaint and proposed … Continue Reading

Jury Tests the Limits in AndroGel False Ad Verdict

In late July, an Illinois jury came to a bizarre verdict in a case over an alleged link between heart attacks and AndroGel, a gel product used for treating low testosterone (or “low T”). The jury found that AbbVie, Inc., the drug company behind AndroGel, although not strictly liable or negligent in allegedly causing a … Continue Reading

Court Dismisses “Phantom Markdown” Suit against Saks

Our colleagues at Proskauer’s commercial litigation blog, Minding Your Business, recently covered a dismissal of a discount advertising suit asserted against Saks. The case is Nunez v. Saks Inc., 2017 WL 1184058 (S.D. Cal. Mar. 22, 2017), and Proskauer’s coverage may be found here. *** Want to talk advertising? We welcome your questions, ideas, and … Continue Reading

Foreign Importer Hanging by a Thread, but International Trade Commission Cuts It Off

The International Trade Commission recently issued a general exclusion order barring the importation of bed sheets with falsely advertised thread counts as a remedy for Section 337 violations.  The decision in In re Certain Woven Textile Fabrics and Products Containing Same demonstrates the potential reach of Section 337, which prohibits unfair practices related to the … Continue Reading
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