Proskauer on Advertising Law
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Category Archives: Deceptive Trade Practices

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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

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
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

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

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
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

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
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

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

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
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

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
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

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
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

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
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

Judge Has No “Reservations” Dismissing Advertising Suit Against Omni Hotels

By Lawrence Weinstein, Jennifer Yang and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices
Judge Cathy Ann Bencivengo of the U.S. District Court for the Southern District of California recently dismissed with prejudice a putative class action alleging that the Omni luxury hotel chain deceptively advertised its hotel room rates on Expedia. In doing so, the Court found plaintiff failed to adequately allege that reasonable consumers would be deceived … Continue Reading

2020 Advertising Law Year in Review

By Lawrence Weinstein, Baldassare Vinti, Jeff Warshafsky, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Lanham Act, NAD/NARB/CARU/ERSP, Regulatory
While 2020 was an eventful year in the world of advertising law, it feels wrong to begin any type of “year in review” without acknowledging the global events of this year, and the challenges they have brought to every individual in one way or another. In our role, we are often in a position of … Continue Reading

Judges Toss Plain “Vanilla” Deceptive Labeling Claims

By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
The beverage industry came out on top in a pair of recently dismissed lawsuits alleging the use of the term “vanilla” on drink labels was misleading, where the vanilla flavor allegedly did not come exclusively from the vanilla bean plant. Howard Clark v. Westbrae Natural, No. 20-cv-03221-JSC (N.D. Cal. December 1, 2020); Ryan Cosgrove et … Continue Reading

The Parent Trap: Ninth Circuit Affirms Dismissal of Complaint Against Advertiser’s Subsidiary and Distributor

By Lawrence Weinstein, Jennifer Yang and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
The Ninth Circuit recently upheld a decision granting a motion to dismiss a putative class action challenging the accuracy of “natural” labeling on soap products made by Grisi Mexico, where the lawsuit was filed against the manufacturer’s U.S. subsidiary and distributor, rather than against the manufacturer itself. Prudencio v. Midway Importing, Inc., No. 19-55150, 2020 … Continue Reading

Seventh Circuit Sides with Plaintiffs in Appeal of “100% Grated Parmesan Cheese” Claims

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Bryant D. Wright on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
The Seventh Circuit recently reversed a district court’s dismissal of a class action false advertising complaint, holding that an ingredient list’s disclosure of components other than parmesan cheese did not foreclose the possibility of reasonable consumers being deceived by a “100% Grated Parmesan Cheese” front label claim.  Bell v. Publix Super Markets, Nos. 19-2581 & … Continue Reading

Much A-Brew About Nothing: Court Dismisses False Ad Suit Against Starbucks

By Lawrence Weinstein, Jeff Warshafsky and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Alison Nathan of the U.S. District Court for the Southern District of New York recently dismissed with prejudice a putative class action alleging Starbucks misrepresented itself as a “premium” coffee retailer. In doing so, the Court found that plaintiffs failed to allege Starbucks made any statements likely to mislead reasonable consumers, and that nearly … Continue Reading

Ninth Circuit Credits Arbitration Clause and Class Action Waiver in Experian Advertising Suit

By Lawrence Weinstein, Jennifer Yang and Bryant D. Wright on Posted in Class Actions, Deceptive Trade Practices
In a putative class action concerning Experian’s marketing of its “Experian Credit Score” service, the Ninth Circuit recently affirmed a lower court order granting Experian’s motion to compel arbitration based on an arbitration clause in its terms and conditions. That arbitration clause also included a class action waiver, thus effectively barring plaintiff from bringing her … Continue Reading

“Fishy” Allegations: Judge Finds Plaintiffs’ Testimony in False Ad Suit Against SeaWorld Lacked Credibility

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices
Following a three-day bench trial, Judge Jeffrey S. White of the Northern District of California recently held that Plaintiffs lack standing to pursue their false advertising claims against SeaWorld relating to its treatment of orca whales. Kelly Nelson, et al. v. SeaWorld Parks and Entertainment, No. 15-cv-02172-JSW (N.D. Cal. October 13, 2020). Plaintiff Nelson alleged … Continue Reading
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