Tag Archives: Deceptive Trade Practices

Justin Timberlake Waves Bai Bai Bai to Partially Dismissed “No Artificial Flavors” Beverage Mislabeling Suit

Last month, a judge in the Southern District of California partially dismissed a putative class action against beverage company Bai Brands, LLC (“Bai”) and related defendants. Branca v. Bai Brands, LLC, No. 18-00757 (S.D. Cal. 2019). Plaintiff Kevin Branca filed this lawsuit against Bai, its parent company Dr. Pepper Snapple Group, Inc. (“DPSG”), the CEOs of … Continue Reading

California Court Sours on Starbucks Gummies Lawsuit

By Lawrence Weinstein, Jeff Warshafsky and Ariella Muller on April 25, 2019 Posted in Deceptive Trade Practices, Labeling Claims

Several months ago we covered two Second Circuit decisions that addressed false advertising claims related to ingredients and product labeling of foods, which reached differing results. Applying similar principles, a recent decision from the Southern District of California found that Starbucks’ packaging for its sour gummy candies did not reasonably suggest that the candies were … Continue Reading

Ninth Circuit Denies Review of Class Certification in Beer Labeling Brouhaha

By Lawrence Weinstein, Carl Mazurek and Ariella Muller on April 15, 2019 Posted in Class Actions, Deceptive Trade Practices, Labeling Claims

In a 2-1 decision memorialized in a one-page order, a Ninth Circuit panel recently denied Kona Brewing’s request for leave to appeal a grant of class certification to a consumer class claiming that the company’s branding deceptively communicated the false message that Kona beer is brewed in Hawaii. Broomfield v. Craft Brew Alliance, No. 18-80145 … Continue Reading

Ninth Circuit Sends Brain-Booster Claim Case Back to District Court

By Lawrence Weinstein, Jeff Warshafsky and Eric Wertheim on April 9, 2019 Posted in Class Actions, Deceptive Trade Practices

After Ninth Circuit review, it remains to be seen whether a nutritional supplement maker can claim that ginkgo biloba leaf extract and vinpocetine supplements improve “alertness,” “mental clarity, and memory” in the face of contradictory scientific studies. In Korolshteyn v. Costco Wholesale, No. 17-56435 (2019), the Ninth Circuit reversed a district court order granting summary judgment in favor … Continue Reading

Snack Bar Class Action Powers On After USDA Action and FDA Inaction

By Lawrence Weinstein, Jennifer Yang and Russell Kostelak on March 21, 2019 Posted in Class Actions, Regulatory

Unlike a fine wine, a snack bar does not get better with age. Neither, apparently, does litigation. Last month, Judge William H. Pauley III in the Southern District of New York lifted a years-long stay in a lawsuit against KIND LLC concerning the allegedly false marketing of KIND snack products as “all-natural” and “non-GMO.” In … Continue Reading

If Class Action Litigants Could Turn Back Time (The Text Would Have Said So)

By Lawrence Weinstein, Carl Mazurek and Kelly Landers Hawthorne on March 4, 2019 Posted in Class Actions, Deceptive Trade Practices

Last week, the Supreme Court unanimously reversed a Ninth Circuit decision, resolving a circuit split in ruling that Federal Rule of Civil Procedure 23(f)’s 14-day deadline for a losing party to file a petition for permission to appeal an order granting or denying class certification is not subject to equitable tolling. Nutraceutical Corp. v. Lambert, … Continue Reading

Nestlé’s Non-Disclosure of Child and Slave Labor Issues on Packaging Not Deceptive or Unfair, Massachusetts Federal Court Holds

By Lawrence Weinstein, Carl Mazurek and Eric Wertheim on February 28, 2019 Posted in Deceptive Trade Practices

Though child and slave labor is “widespread, reprehensible, and tragic,” a federal court in the District of Massachusetts found it was not deceptive for Nestlé to omit from product labels that those practices (allegedly) exist in its supply chain. In granting defendant Nestlé’s motion to dismiss, the court, after assuming that plaintiff’s allegations are true, … Continue Reading

SDNY Judge Not Sweet on Dannon’s Bid for a Preliminary Injunction

By Lawrence Weinstein, Jeff Warshafsky and Emily H. Kline on February 19, 2019 Posted in Deceptive Trade Practices, Injunctions, Lanham Act

In a battle of leading yogurt beverage makers, Chief Judge Colleen McMahon of the U.S. District Court for the Southern District of New York recently denied Dannon’s application for a preliminary injunction in its false advertising suit against Chobani. The result of Judge McMahon’s decision is that Chobani can continue to sell its yogurt drinks … Continue Reading

Kimberly-Clark Unable to Flush Wet Wipes Case

By Lawrence Weinstein, Jeff Warshafsky and Aliza Hassine on January 28, 2019 Posted in Class Actions, Deceptive Trade Practices, Labeling Claims

On December 10, 2018, the Supreme Court denied certiorari in Kimberly-Clark Corp, v. Davidson, No. 18-304 (2018), in which Kimberly-Clark sought to overturn a controversial Ninth Circuit decision allowing a plaintiff in a false advertising case to seek injunctive relief on behalf of an alleged consumer class notwithstanding that plaintiff’s complaint acknowledged she was aware … Continue Reading

Failure to Disclose Claims Washed Away in Facial Scrub Case

By Lawrence Weinstein, Jennifer Yang and Marc Palmer on January 15, 2019 Posted in Class Actions, Deceptive Trade Practices, Labeling Claims

On December 17, 2018, Judge Andrew J. Guilford in the U.S. District Court for the Central District of California granted defendant Unilever’s motion for summary judgment, dismissing all claims in a putative class action concerning St. Ives Apricot Scrub. Browning v. Unilever United States, Inc., 2018 WL 6615064 (C.D. Cal. Dec. 17, 2018). Plaintiffs alleged … Continue Reading

Cheez-Its Class Action Revived in “Whole” by Second Circuit

By Lawrence Weinstein and Jeff Warshafsky on January 3, 2019 Posted in Class Actions, Deceptive Trade Practices, Labeling Claims

We recently blogged about the Second Circuit’s December 3, 2018 decision in Jessani v. Monini, where, applying the reasonable consumer standard, the Court of Appeals unanimously affirmed the dismissal with prejudice of a complaint alleging that the label of an extra virgin olive oil product advertised as “truffle flavored” falsely implied that the product contained … Continue Reading

Third Circuit Splits with the Seventh Over Standing To Sue For Alleged Inefficient Design of Eye Drop Dispenser

By Alexander Kaplan, Lawrence Weinstein and Daniel Werb on December 6, 2017 Posted in Deceptive Trade Practices

In a surprising decision and split with the Seventh Circuit, the Third Circuit recently held that plaintiffs have standing to sue for unfair trade practices under the theory that a manufacturer is obligated to optimize the number of eye drop doses in a container of a fixed volume, even if there is no alleged misrepresentation … Continue Reading

Made-in-the-U.S.A. Complaint Does Not Make the Cut

By Lawrence Weinstein and Daniel Werb on February 28, 2017 Posted in Class Actions, Labeling Claims

In a case decided in December that flew beneath our radar, a judge in the Southern District of California dismissed without prejudice a proposed class action alleging that Citizens for Humanity falsely labeled its jeans as being made in the USA. Hass v. Citizens of Humanity, LLC, 2016 WL 7097870 (S.D. Cal. Dec. 6, 2016). … Continue Reading

IntenseX False Advertising Claims Lack Power and Performance

By Lawrence Weinstein and Lee Popkin on November 23, 2016 Posted in Deceptive Trade Practices, Labeling Claims

Last month, in Kanfer v. Pharmacare US, Inc., U.S. District Judge Marilyn Huff of the Southern District of California dismissed on what were essentially puffery grounds a consumer suit styled as a class action alleging that defendant PharmaCare falsely advertised its nutritional supplement, IntenseX, as an aphrodisiac that “would improve. . .sexual power and performance.” … Continue Reading

The FTC Trims the Fat Off Even More Companies Selling Weight Loss Products

By Alexander Kaplan, Jennifer Yang and Russell Kostelak on May 2, 2016 Posted in Deceptive Trade Practices

Hungry to prevent more companies from selling allegedly bogus weight loss products, the FTC has settled yet another false advertising suit against various sellers of diet pills, in a case similar to February’s Sale Slash settlement blogged about here. The FTC’s latest diet pill settlement enjoins distributors of the dietary supplement known as Pure Green Coffee … Continue Reading

Ruling Allows Gerber False Advertising Suit to Crawl Onward

By Alexander Kaplan, Jennifer Yang and James Unger on September 29, 2015 Posted in Class Actions, Deceptive Trade Practices, Labeling Claims

For plaintiffs concerned that the Fourth Circuit Court of Appeals’ June 19, 2015 decision in Brown v. GNC Corp. signaled the muscling in of a stricter new pleading standard for false advertising class actions nationwide, a recent ruling out of the Central District of California likely acted as a pacifier. On July 14, 2015, U.S. … Continue Reading

Sun-Blocked: California Court Dismisses Sunscreen Labeling Case

By Lawrence Weinstein, Benjamin Rattner and Jeff Warshafsky on August 11, 2015 Posted in Deceptive Trade Practices, Labeling Claims, Regulatory

It’s summertime, and for many of us that means buying and applying sunscreen. Lots of it. Indeed, when selecting sunscreen rated at, say, SPF 30, we rely on national standards promulgated by the FDA. It thus comes as no surprise that a California state appellate court recently rejected attempts by several plaintiffs to impose different … Continue Reading

Procera AVH Marketers Can Forget About Claiming to Reverse Memory Loss

By Lawrence Weinstein and Sarah Sullivan on July 30, 2015 Posted in Deceptive Trade Practices, Regulatory

It turns out that there is not a magic pill capable of reversing the effects of aging on the human brain, including memory loss, or at least not one we can remember right now. The FTC recently reminded the marketers of Procera AVH, a dietary supplement that allegedly combats memory loss and cognitive decline, of … Continue Reading

Beer-Maker Puts an End to Brewhaha: Anheuser Busch Agrees to Settle Second of Two Class Action Lawsuits over Beer Origin Disclaimers

By Lawrence Weinstein, Alexander Kaplan and Jennifer L. Jones on July 8, 2015 Posted in Class Actions, Labeling Claims

Anheuser Busch recently agreed to settle a consumer class action over Beck’s Beer labeling that we previously reported on with regard to the uptick in consumer class actions proceeding past the pleading stage in the Southern District of Florida. Marty et al. v. Anheuser-Busch Cos., 13-cv-23656-JJO (S.D. Fla.). Anheuser-Busch’s decision to settle the Beck’s suit … Continue Reading

Tailoring the Suit: Plaintiffs File Amended Complaint in Nordstrom Rack Price-Tag False Advertising Lawsuit

By Alexander Kaplan and James Unger on May 28, 2015 Posted in Labeling Claims, Lanham Act

Nordstrom Rack has recently found itself at the center of an unwelcome suit over its labeling practices. Nordstrom Rack discloses the savings it offers customers by placing “compare at” labels on its price tags which show two prices: the “compare at” price and a lower, actual sale price. A recent class action filed in the … Continue Reading

Maker’s Marketing: Bourbon Distiller Racks up “Handmade” False Advertising Victory

By Lawrence Weinstein and John Browning on May 20, 2015 Posted in Class Actions, Labeling Claims

In a decision that will interest distillers and hipster connoisseurs of artisanal beverages alike, a district court in the Northern District of Florida has decided that Maker’s Mark can describe its whiskey as “handmade” despite the fact that it is produced in industrial quantities to serve the national market. Accordingly, the court refused to allow … Continue Reading

In Consumer Class Actions, Discovery is not Insured

By Lawrence Weinstein, Alexander Kaplan, Jeff Warshafsky and Daniel Werb on May 14, 2015 Posted in Class Actions, Typicality Requirement

Consumer class action defendants in New Jersey state courts may be able to avoid costly discovery following a New Jersey state appeals court’s recent affirmance of a pre-discovery denial of class action certification in Myska v. New Jersey Manufacturers Co. The putative class alleged that the defendants violated New Jersey’s Consumer Fraud Act by improperly … Continue Reading

A Court in the Sunshine State Blocks Injunctive Relief against Neutrogena Sunscreen Claims; Meanwhile P&G Cannot Flush Charmin Claims for the Same Relief in New York

By Alexander Kaplan and Benjamin Rattner on May 7, 2015 Posted in Class Actions, Deceptive Trade Practices, Labeling Claims

Assume the following: plaintiff brings a putative class action under state consumer protection laws alleging that he bought a product based on false claims on its packaging. He seeks monetary and injunctive relief. However, plaintiff vows never to buy the product displaying the allegedly false advertising again or cannot purchase the product so-labeled because the … Continue Reading

Tomorrow is Another One-A-Day: FDA Guidelines Preempt Vitamin Claims, but Consumer Class Still Has Opportunity to Supplement

By Alexander Kaplan and Daniel Werb on April 30, 2015 Posted in Class Actions, Labeling Claims, Regulatory

Although consumer class actions in California are dime-a-dozen, a recent Northern District of California case involving One A Day vitamins stands out because it demonstrates how federal regulations can preempt certain state law claims regarding the health benefits of dietary supplements. The putative class alleged that three statements made by Bayer on their One A … Continue Reading

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