Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Deceptive Trade Practices

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

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

The Fun Did Stop for Pringles False Advertising Class Action

By Lawrence Weinstein, Jeff Warshafsky and Emily H. Kline on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
On January 31, 2020, Southern District of New York Judge Alvin Hellerstein denied Plaintiff Matthew Marotto’s motion for reconsideration of an order denying class certification in his lawsuit against Pringles potato chip maker Kellogg over allegedly misleading labeling of Pringles cans. Marotto v. Kellogg, No. 1:18-cv-03545 (S.D.N.Y. Jan. 31, 2020).… Continue Reading

Ninth Circuit Confirms Dr Pepper Can Stick to its “Diet”

By Lawrence Weinstein, Jennifer Yang and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
The Ninth Circuit recently affirmed the dismissal of a putative class action alleging that defendant Dr Pepper/Seven Up, Inc. (“Dr Pepper”) violated various California consumer fraud laws by using the term “diet” in naming and marketing Diet Dr Pepper. Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225 (9th Cir. 2019). Plaintiff alleged that this … Continue Reading

Hershey Kisses Chocolate Mislabeling Suit Goodbye

By Lawrence Weinstein, Carl Mazurek and Ariella Muller on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
A California federal judge recently handed a victory to the Hershey Co. in a suit alleging the company falsely represented that its Brookside chocolate products have no artificial flavors. Clark v. Hershey Co., 18-cv-06113 (N.D. Cal. Nov. 15, 2019). U.S. District Judge William Alsup granted summary judgment in favor of Hershey on the basis of … Continue Reading

Seventh Circuit Remands after District Judge Makes Injunction Stickier in Light Beer Corn Syrup Dispute

By Lawrence Weinstein, Carl Mazurek and Ariella Muller on Posted in Deceptive Trade Practices, Injunctions, Labeling Claims
The Seventh Circuit has remanded a lawsuit concerning beer advertising to the district court for failure to follow required procedures in issuing a preliminary injunction – the latest development in the case’s torturous procedural history. On May 24, 2019, Judge William Conley of the Western District of Wisconsin issued a preliminary injunction banning Anheuser-Busch from … Continue Reading

Food for Thought: Outcomes of Food Labeling Cases Prove Difficult to Predict

By Lawrence Weinstein, Carl Mazurek, Monique Curry and Emily H. Kline on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
As we wrote recently, the past year has seen a proliferation of lawsuits alleging that food product labels mislead consumers about the product’s ingredients. The trend continued last month, with decisions from the Court of Appeals for the First Circuit and one of its district courts reaching different results on motions to dismiss complaints alleging … Continue Reading

Plaintiff Fails to Butter Up Court with Mashed Potato Suit

By Lawrence Weinstein, Jeff Warshafsky and Carl Mazurek on Posted in Deceptive Trade Practices, Labeling Claims
We have previously written about decisions addressing food product labels, and the messages that these labels convey about the products’ ingredients. In Jessani v. Monini, the Second Circuit found that a product label for “white truffle flavored” olive oil did not imply that the product contained actual white truffles. Not long afterwards, the Second Circuit … Continue Reading

Court Lets Trader Joe’s Out of Sticky Situation Over Honey Advertising

By Lawrence Weinstein, Carl Mazurek and Marc Palmer on Posted in Deceptive Trade Practices, FDCA, Labeling Claims
A magistrate judge in the Northern District of California recently dismissed a putative class action alleging that Trader Joe’s misled its consumers about the purity of its manuka honey.  Moore v. Trader Joe’s Co., No. 4:18-CV-04418-KAW, 2019 WL 2579219 (N.D. Cal. June 24, 2019). Plaintiffs commenced a putative class action lawsuit alleging that Trader Joe’s … Continue Reading

En Banc Ninth Circuit Reinstates and Clarifies Standard for Nationwide Class Action Settlement

By Lawrence Weinstein, Jennifer Yang and Carl Mazurek on Posted in Class Actions, Commonality Requirement, Deceptive Trade Practices
Last month, the Ninth Circuit sitting en banc affirmed, by an 8–3 vote, a nationwide class settlement of a multidistrict litigation against automakers Kia and Hyundai over alleged misrepresentations regarding certain vehicles’ fuel efficiency. In re Hyundai and Kia Fuel Economy Litigation, 15-56014 (9th Cir. 2019). The en banc decision overturned the controversial decision last … Continue Reading

NAD Not Influenced by Verification Platform’s Claims

By Lawrence Weinstein, Carl Mazurek and Eric Wertheim on Posted in Deceptive Trade Practices, NAD/NARB/CARU/ERSP, Social Media
In a recent decision, the advertising industry self-regulatory body NAD recommended that influencer marketing firm Ahalogy tone down some of its claims about the capabilities of its new product, the Tri-Verified influencer marketing platform. The decision comes at a time when influencer marketing is becoming an increasingly popular— and challenging—field. Influencer marketing is what the … Continue Reading

Suit Over Use of American Heart Association Certification Mark Maintains a Pulse

By Alexander Kaplan and Carl Mazurek on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Is it deceptive to label food products with the mark of the American Heart Association (“AHA”) without disclosing that the AHA was paid for use of its certification mark? This was the question raised by a putative class action lawsuit in the Northern District of New York, which largely survived dismissal on March 25, 2019. … Continue Reading
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