Proskauer on Advertising Law
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Category Archives: Deceptive Trade Practices

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S.D.N.Y. Waters Down Prior Ruling on “Carbon Neutral” Consumer Deception Claim

By Baldassare Vinti, Jeff Warshafsky and Naomi Caldwell on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
The Southern District of New York recently reconsidered its partial denial of Defendant Danone Waters of America’s motion to dismiss claims alleging Danone falsely advertised Evian water as “carbon neutral.” Reversing his prior ruling, Judge Nelson S. Román concluded that the carbon neutral labeling on Evian water bottle products was not plausibly misleading to reasonable … 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

Eco-Friendly Claims Under Fire: The Legal Risks of Greenwashing for Businesses

By Baldassare Vinti, Jessica Griffith and Peter Angelica on Posted in Deceptive Trade Practices
In today’s market, eco-friendly claims can serve as a tool for companies looking to attract environmentally conscious consumers.  However, this surge in green marketing has also caught the attention of the plaintiffs’ bar, which is increasingly scrutinizing these claims for lucrative opportunities in potential lawsuits.  As demonstrated by recent legal actions, companies must tread carefully … 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

FTC Finalizes Updates to Endorsement Guides, Reflecting Increased Focus on Online Reviews and Social Media Marketing

By Baldassare Vinti, Jeff Warshafsky, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Announcements, Deceptive Trade Practices, FTC, Social Media
This week the FTC announced that it finalized its revisions to the Endorsement Guides, which give advertisers guidance on ensuring that their use of endorsements or testimonials complies with the FTC Act. At the same time, the FTC also announced an updated accompanying guidance document, “FTC’s Endorsement Guides: What People are Asking.” While the revised … 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

“Born in the USA”?: Place of Origin Claims Take Center Stage in False Advertising Suits and FTC Enforcement

By Baldassare Vinti, Anisha Shenai-Khatkhate and Briana Seyarto Flores on Posted in Deceptive Trade Practices, FTC, Labeling Claims
It has been almost forty years since Bruce Springsteen first famously celebrated being “Born in the USA.” From an advertising industry perspective, this song’s lasting popularity is no surprise; as advertisers know, “Made in the USA” is often a selling point for American industries. The FTC knows this too. In late 2021, the FTC finalized … Continue Reading

A Slammed (Open)Door: FTC Reaches $62 Million Proposed Settlement with Real Estate Company

By Baldassare Vinti, Jeff Warshafsky and Jana R. Ruthberg on Posted in Deceptive Trade Practices, FTC, Regulatory
Last month, the FTC announced that it reached a $62 million proposed settlement with Opendoor Labs, related to the Commission’s investigation of the company’s representations in advertising to prospective home sellers. Opendoor is an online real estate business in the “iBuying” (or “instant buying”) space. iBuying companies use algorithms to determine a home’s value and … 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

On Notice: Disclosing Unexpected Material Connections in Advertising

By Baldassare Vinti, Anisha Shenai-Khatkhate and Jessica Griffith on Posted in Deceptive Trade Practices, FTC, Social Media
In this final installment of our “On Notice” series about the FTC’s Notice of Penalty Offenses Concerning Endorsements, we discuss when and how to properly disclose the existence of a material connection between an advertiser and an endorsing party. Per the FTC’s Notice of Penalty Offenses, “[i]t is an unfair or deceptive trade practice to … Continue Reading

On Notice: Unsubstantiated or Unrepresentative Testimonials

By Baldassare Vinti, Jennifer Yang and Amy Gordon on Posted in Deceptive Trade Practices, FTC
Continuing our “On Notice” series about the FTC’s Notice of Penalty Offenses Concerning Endorsements, we address the FTC’s prohibition against using testimonials to (1) make or imply unsubstantiated or otherwise deceptive performance claims even if such testimonials genuinely reflect the endorser’s own experience, and (2) misrepresent explicitly or implicitly that the experience described by endorsers … Continue Reading

Court Cuts Short Challenge to Zicam’s “Clinically Proven to Shorten Colds” Claims

By Baldassare Vinti, Jeff Warshafsky and Jessica Griffith on Posted in Deceptive Trade Practices, Labeling Claims
In Yamasaki v. Zicam, LLC, Case No. 21-cv-2596 (N.D. Cal. 2021), Plaintiff alleged certain Zicam® cold remedy products were falsely advertised as “clinically proven to shorten colds.”  On this basis, Plaintiff sought to represent a putative class of California consumers for seven different Zicam products.  Zicam, represented by Proskauer, moved to dismiss Plaintiff’s amended complaint … Continue Reading

On Notice: Continued Use of Endorsements

By Baldassare Vinti, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Deceptive Trade Practices, FTC
Continuing our series on the FTC’s Notice of Penalty Offenses Concerning Endorsements, this post considers the FTC’s statement that it is unlawful under Section 5 of the FTC Act “for an advertiser to continue to advertise an endorsement unless the advertiser has good reason to believe that the endorser continues to subscribe to the views … Continue Reading

On Notice: Misattributed, False, or Mischaracterized Endorsements

By Baldassare Vinti, Jeff Warshafsky, Anisha Shenai-Khatkhate and Alyson Tocicki on Posted in Announcements, Deceptive Trade Practices, FTC, NAD/NARB/CARU/ERSP, Regulatory
Continuing our series on the FTC’s Notice of Penalty Offenses Concerning Endorsements, this post considers the issues of falsely attributed, mischaracterized, and fabricated endorsements – practices that the FTC highlighted in its Notice as unfair or deceptive. In particular, the FTC stated that: It is an unfair or deceptive trade practice to make claims which … Continue Reading

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
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

“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
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