Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Deceptive Trade Practices

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

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
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