Proskauer on Advertising Law
Proskauer on Advertising Law

Update: Second Circuit Affirms Dismissal of Lanham Act Claims Based on Allegedly False UL Certification

Last fall, we covered the Southern District of New York’s dismissal of Board-Tech Electronic Company’s Lanham Act false advertising claim.  Based on its own internal testing, Board-Tech alleged that light switches sold by its competitor, Eaton Corporation, were falsely labeled as complying with an Underwriters Laboratories (“UL”) certification standard.  However, the district court found that Board-Tech had not plausibly alleged that Eaton’s labelling was false because the product was in fact certified by UL. Continue Reading

Federal “Spring Water” Standards Runneth Over State Claims

We often cover cases in which false advertising claims brought under state law are challenged as preempted by a federal regulatory scheme.  Poland Spring was a recent target of state law false advertising claims, and successfully obtained the dismissal of those claims on the ground that they were preempted by federal statute.  Patane v. Nestle Waters N. Am., 2018 WL 2271161 (D. Conn. May 17, 2018). Continue Reading

Sixth Circuit Says T-bone Steaks and Salmon Filets on Pet Food Packaging Not Misleading

Last month, the Sixth Circuit held that photographs of “premium cuts” of meat on pet food packaging were not enough to mislead a reasonable consumer into believing that the kibble was made from these high-end ingredients.  Wysong v. APN, 889 F.3d 267 (6th Cir. 2018).

In 2016, Wysong Corporation, a pet-food manufacturer, sued six other pet-food manufacturers asserting that the packaging used by their competitors was deceptive under the Lanham Act because the lamb chops and other premium cuts depicted on the product packaging did not accurately represent the products’ actual ingredients—meat trimmings. Continue Reading

Lanham Act Injunction Floored Where Social Media Criticisms Were Not “Commercial Advertising”

A judge in the Western District of Wisconsin recently denied a motion for a preliminary injunction that sought to prevent a customer from criticizing the plaintiff’s products over social media.  Buckeye Int’l v. Schmidt Custom Floors, 2018 WL 1960115 (W.D. Wis. Apr. 26, 2018).  Plaintiff Buckeye sells floor finishing products, and defendant Schmidt is a flooring installer and refinisher.  Schmidt purchased Gym Bond, Buckeye’s floor finishing product, to facilitate the bonding of a clear topcoat to finished hardwood sports courts.  When the topcoat peeled off, Buckeye blamed Schmidt and refused to pay for repairs and refinishing.  Schmidt then complained about Gym Bond and Buckeye on social media, which caused Buckeye to sue Schmidt for false advertising under the Lanham Act and seek a preliminary injunction barring Schmidt’s social media postings about Buckeye and its product. 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 class action in the Northern District of California against Dr. Pepper, claiming the prominent display of the term “diet” on the Diet Dr. Pepper label falsely indicated that the product would contribute to healthy weight management and would not cause her to gain weight.  2018 WL 1569697 (N.D. Cal. Mar. 30, 2018).  Instead, Becerra alleged that the use of artificial sweeteners in Diet Dr. Pepper actually caused her to gain weight. Continue Reading

Organic Baby Food for Thought: Second Circuit Holds that OFPA Certified Organic Product Labels Cannot Be Challenged as Misleading Under State Law

The Second Circuit recently affirmed the dismissal of a class action asserting state law claims that a manufacturer falsely advertised its baby formula as organic.  In doing so, the appellate court agreed with the district court’s finding that the claims were preempted by a federal law called the Organic Foods Production Act (“OFPA”).  Marentette v. Abbott Labs., 886 F.3d 112 (2d Cir. 2018).

A group of parents who purchased baby formula sued Abbott under state law for allegedly marketing its baby formula as organic even though it supposedly did not qualify as such under state law as plaintiffs construed it.  However, the OFPA has its own process for determining whether products can be labeled as organic, and the baby product at issue had already been certified as organic pursuant to the OFPA’s statutory scheme.  Thus, the district court found plaintiffs’ claims to be preempted.

In affirming the district court’s ruling that plaintiffs’ state law claims “posed an obstacle to Congress’s objectives in enacting the OFPA,” the Second Circuit elaborated that there was simply no way to rule in plaintiffs’ favor without contradicting the certification decision by an accredited certifying agent acting pursuant to the OFPA’s terms.  Thus, the Second Circuit found a direct conflict between plaintiffs’ construction of state law and the structure and purpose of the OFPA.

The Second Circuit noted that an OFPA-compliant certification of a product as organic does not automatically preclude all false advertising lawsuits addressing an advertiser’s touting its product as organic.  Citing a decision by the Eighth Circuit, the Court of Appeals acknowledged that a suit claiming that an advertiser materially misrepresented to the accredited certifying agent the facts related to the ingredients and/or manufacturing process that led to the agent’s certification of a product as organic would not be preempted by the OFPA.  However, where as here, a plaintiff’s state law claim is premised on a different determination of what is “organic” than the OFPA provides, the state law claim is preempted.

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Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at lweinstein@proskauer.com /212-969-3240 or akaplan@proskauer.com /212-969-3671.  We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.

Ninth Circuit Finds Grounds to Dismiss Iced Coffee False Advertising Suit

Recently, the Ninth Circuit affirmed a district court’s dismissal of a putative class action claiming that Starbucks deceived its customers by under-filling the liquids in its iced drinks and adding ice to make the cups appear full. Forouzesh v. Starbucks Corp. The Ninth Circuit held that “no reasonable consumer would think (for example) that a 12-ounce ‘iced’ drink, such as iced coffee or iced tea, contains 12 ounces of coffee or tea and no ice.” Continue Reading

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