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Category Archives: Deceptive Trade Practices

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“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

Court Gives Cold Shoulder to FTC’s False Advertising Claims Against Housing Insulation Company

By Lawrence Weinstein, Jennifer Yang and Brooke Gottlieb on Posted in Deceptive Trade Practices, Regulatory
In a dispositive decision during a bench trial, federal district court Judge Nora Fischer of the Western District of Pennsylvania found that the FTC failed to present any credible expert testimony to support its suit for false advertising, and entered judgment for Defendant Innovative Designs (“IDI”). FTC v. Innovative Designs, No. 16-1669 (W.D. Pa. Sept. … Continue Reading

As Challenges to Recycling Claims Rise, Use Caution When Giving the “Green” Light

By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, NAD/NARB/CARU/ERSP, Regulatory
NPR and PBS recently released an attention-grabbing investigation titled “How Big Oil Misled The Public Into Believing Plastic Would Be Recycled.”  According to the investigation, beginning in the late 1980s, “big oil” began a $50 million-a-year ad campaign promoting the benefits of plastic, while simultaneously informing the public that plastic is recyclable. In fact, according … Continue Reading

Survey Evidence in Amended Complaint Does Not Add Enough Juice to Save “Natural” Claims Against Mott’s Apple Products

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Eric Wertheim on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Beth Freeman of the U.S. District Court for the Northern District of California recently dismissed with prejudice a putative class action alleging that Mott’s apple-based products were deceptively labeled “Natural” and as containing “All Natural Ingredients.” Yu v. Dr Pepper Snapple Group, No. 18-cv-06664-BLF (N.D. Cal. Oct. 6, 2020). In doing so, Judge Freeman … Continue Reading

Conagra Slips Away from Parkay Oil Spray Serving Size Claims

By Lawrence Weinstein, Jeff Warshafsky and Eric Wertheim on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Primary Jurisdiction/Preemption, Regulatory
Conagra Brands recently emerged victorious when Judge William H. Orrick of the U.S. District Court for the Northern District of California granted summary judgment in its favor, tossing claims that the company disguises the fat and calorie content of its Parkay Spray vegetable oil spray product (“Parkay”) with artificially small serving sizes. Allen v. Conagra … Continue Reading

Judge Dunks Plaintiffs’ Claims and Dismisses Oreo False Advertising Lawsuit

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Edward R. Korman of the U.S. District Court for the Eastern District of New York recently granted Mondelēz Global’s motion to dismiss a putative class action challenging the advertising for its signature Oreo cookies. Harris v. Mondelēz Global, No. 19-cv-2249-ERK (E.D.N.Y. July 28, 2020). Plaintiffs alleged the Oreo manufacturer’s front label statement “Always Made … Continue Reading

Court Gives Vanilla Ice Cream False Advertising Claims a Frosty Reception

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Emily H. Kline on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Louis L. Stanton of the Southern District of New York recently granted defendant Wegmans Food Markets’motion to dismiss claims alleging that Wegmans falsely labels its vanilla ice cream. Plaintiffs sued Wegmans for false advertising, negligent misrepresentation, and deceptive acts in violation of federal and state law, alleging that despite labeling its product “vanilla ice … Continue Reading

Split Ninth Circuit Panel Vacates $24M Judgment in Hospital Gown Advertising Class Action

By Lawrence Weinstein, Jennifer Yang and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
A split Ninth Circuit panel recently overturned a $24 million judgment in a class action lawsuit against Kimberly-Clark and its spinoff, Halyard Health. Bahamas Surgery Center v. Kimberly-Clark et al., No. 18-55478 (9th Cir. July 23, 2020). Plaintiff class representative Bahamas Surgery Center accused the defendants of misrepresenting the effectiveness of their surgical gowns at … Continue Reading

Burger King Wins “Whopper” of a Case: Federal Court Finds No Promise of Method of Preparation in Advertisements for Meatless Burger

By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices
Judge Raag Singhal of the Southern District of Florida recently granted Burger King’s motion to dismiss a putative class action challenging its advertising for its plant-based “Impossible Burger,” and its motion to deny class certification. Williams v. Burger King, No. 19-24755 (S.D. Fla. July 20, 2020). Plaintiffs alleged Burger King’s advertisements for its non-meat “Impossible … Continue Reading

Added Allegations of Consumer Survey Results Fail to Sweeten the Deal: Court Dismisses “White Chips” False Advertising Suit With Prejudice

By Lawrence Weinstein, Jennifer Yang and Eric Wertheim on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
We previously blogged about the dismissal without prejudice of a putative consumer class action alleging that the well-known confectioner Ghirardelli misled consumers into believing its “Premium Baking Chips Classic White Chips” contained white chocolate. Last month, Judge Phyllis J. Hamilton of the Northern District of California once again dismissed plaintiffs’ claims against Ghirardelli – this … Continue Reading

Court Decides Motion to Dismiss Crystal Light “No Artificial Flavors” Labeling Suit Lacks Juice

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Bryant D. Wright on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Last month, Judge Dale S. Fischer of the U.S. District Court for the Central District of California denied Kraft Heinz’s motion to dismiss a putative nationwide class action alleging Kraft falsely advertised its “Crystal Light” drink products as containing no artificial flavors when, according to plaintiffs, they contain synthetic DL-Malic Acid. Narguess Noohi v. The … Continue Reading

Court Tosses Hogwash Claims, OKs Pork Producer’s Use of “Prime” in Advertising

By Lawrence Weinstein, Jeff Warshafsky and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Paul C. Huck of the U.S. District Court for the Southern District of Florida recently granted a motion to dismiss brought by Defendants The Fresh Market and Tyson Fresh Meats in a putative consumer class action alleging that defendants deceptively marketed their “Chairman’s Reserve Prime Pork” product as graded prime by the federal Department … Continue Reading

First Circuit Affirms No Duty to Disclose Upstream Labor Abuses on Chocolate Packaging

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
We recently blogged  about a District of Massachusetts decision holding that it was not deceptive for Nestlé to omit from product labels the (alleged) existence of child labor in its cocoa supply chains. The First Circuit recently affirmed this decision, along with decisions dismissing identical lawsuits against Mars and The Hershey Company. The First Circuit … Continue Reading

No “White” Lie: Plaintiffs Fail to Show Reasonable Consumer Would Expect “White Morsels” to Contain White Chocolate

By Lawrence Weinstein, Jeff Warshafsky and Eric Wertheim on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
After the recent dismissal  of nearly identical claims, the same consumer plaintiffs have once again been thwarted in their attempt to challenge labeling and advertising that supposedly misleads consumers into believing the product contains white chocolate. Prescott v. Nestle USA, Inc., No. 19-CV-07471-BLF (N.D. Cal. June 4, 2020). Here, the plaintiffs alleged that Nestle’s use … Continue Reading

A Legen-dairy Victory: Ben & Jerry’s Wins “Happy Cows” False Advertising Lawsuit

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Monique Curry on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Earlier this summer, the District Court of Vermont dismissed a false advertising lawsuit alleging that Ben & Jerry’s claims that it sources dairy products from “happy cows” on “Caring Dairy” farms were materially misleading. Ehlers v. Ben & Jerry’s Homemade, No. 2:19-cv-00194 (D. Vt. 2020). The plaintiff interpreted the “happy cow” and “Caring Dairy” statements … Continue Reading

Seventh Circuit Cans District Court Injunction in Beer Brands Corn Syrup Suit

By Lawrence Weinstein, Jeff Warshafsky and Carl Mazurek on Posted in Deceptive Trade Practices, Labeling Claims
Last month, the Seventh Circuit reversed a district court’s decision preliminarily enjoining Anheuser-Busch from making various advertising claims related to the absence of corn syrup in Bud Light, including that Bud Light has “no corn syrup,” that Molson Coors’s competing Miller Lite and Coors Lite beers are “made with” or “brewed with” corn syrup, and … Continue Reading

Judge Dismisses Half-Baked False Advertising Claims Against Ghirardelli

By Lawrence Weinstein, Jeff Warshafsky and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
On April 8, 2020, Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California granted Ghirardelli Chocolate’s motion to dismiss a putative nationwide class action brought by several consumers who alleged Ghirardelli deceptively marketed its “premium classic white” baking chips as containing white chocolate. Cheslow v. Ghirardelli Chocolate, No. 19-CV-07467-PJH, … Continue Reading

Seventh Circuit Finds No Evidence of Deception in Aloe Vera Gel Labeling Lawsuit

By Lawrence Weinstein, Carl Mazurek and Monique Curry on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Last month, a Seventh Circuit panel unanimously affirmed the district court’s grant of summary judgment dismissing a consumer class action alleging that Fruit of the Earth and its retailer clients deceptively labeled aloe vera gel products. Beardsall v. CVS, 19-1850 (7th Cir. Mar. 24, 2020). Defendants’ aloe vera products are labeled as “Aloe Vera 100% … Continue Reading

Fifth Circuit Rains on Plaintiff’s Parade, Vacates Award in Dispute over Windshield Water Repellant Ad

By Lawrence Weinstein, Jeff Warshafsky and Carl Mazurek on Posted in Deceptive Trade Practices, Lanham Act
Last month, a Fifth Circuit panel vacated in part a judgment in a false advertising case that disgorged the defendant’s profits, awarded corrective advertising damages under the Lanham Act and enjoined the disputed claims. Illinois Tool Works v. Rust-Oleum, 955 F.3d 512 (5th Cir. 2020). The panel held that the plaintiff failed to show the … Continue Reading

Second Circuit Finds Consumer Suit Against Dunkin’ Not Well Done

By Lawrence Weinstein, Jeff Warshafsky and Emily H. Kline on Posted in Class Actions, Deceptive Trade Practices
A Second Circuit panel recently affirmed the dismissal of a putative false advertising class action against Dunkin’ Brands, which alleged the company misled consumers as to the contents of products Dunkin’ described as “Angus steak.” Chen v. Dunkin’ Brands, 18-cv-3087 (2d Cir. Mar. 31, 2020). The complaint asserted claims under various state consumer protection laws, … Continue Reading

Single Communication-Based False Advertising Claim Permitted to Proceed

By Lawrence Weinstein, Alexander Kaplan and Marc Palmer on Posted in Deceptive Trade Practices, Lanham Act
A recent decision out of the District of Massachusetts serves as a reminder that a court may consider even a single communication by an advertiser made directly to a consumer to be advertising under the Lanham Act, particularly where the advertiser competes in a limited market. Allscripts Healthcare v. DR/Decision Res., No. CV 19-11038-NMG, 2020 … Continue Reading

La Croix Loses Rule 11 Battle but Wins War, as Plaintiff Retracts Lawsuit Allegations

By Lawrence Weinstein, Jeff Warshafsky and Eric Wertheim on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
National Beverage Corporation, the maker of the popular LaCroix sparkling water products, failed to obtain Rule 11 sanctions against a consumer plaintiff, but ultimately scored a major victory recently, when the plaintiff not only withdrew her lawsuit, but also took the remarkable step of publicly retracting her claims alleging that LaCroix “all natural” and “100% … Continue Reading

The RealReal Falls Seven Bags Short of 100% Compliance with Advertising Claims

By Lawrence Weinstein, Jeff Warshafsky and Kelly Landers Hawthorne on Posted in Deceptive Trade Practices, Lanham Act
Judge Vernon Broderick of the U.S. District Court for the Southern District of New York recently decided a motion to dismiss by luxury consignment goods reseller The RealReal (“TRR”) in an action brought by famous French brand Chanel. Chanel v. The Realreal, 2020 WL 1503422 (S.D.N.Y. Mar. 30, 2020). In addition to the false advertising … Continue Reading

Beverage Mislabeling Suit Runs Out of Juice

By Lawrence Weinstein, Jeff Warshafsky and Carl Mazurek on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
On February 6, the California Court of Appeals (Second Appellate District) sustained a lower court’s dismissal of a putative class action alleging that the claim “no sugar added” on the label of tangerine juice is deceptive because it falsely implies that competing products do contain added sugar. Schaeffer v. Califia Farms, BC654207 (Cal. App. 2d … Continue Reading
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