Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: FDCA

“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

Gin Manufacturer Bacardi Avoids Lawsuit for Its Use of “Grains of Paradise”

By Lawrence Weinstein, Carl Mazurek and Monique Curry on Posted in Class Actions, FDCA, Regulatory
A federal judge in the Southern District of Florida recently dismissed an action alleging that Bacardi’s use of a botanical called “grains of paradise” in its gin was “harmful and illegal,” holding that the statute on which the lawsuit was based was preempted by federal law. Marrache v. Bacardi U.S.A, 19-cv-23856 (S.D. Fla. Jan. 28, … 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

No Use Crying Over Spilled (Almond) Milk: Ninth Circuit Upholds Dismissal of Almond Milk Labeling Suit

By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, FDCA, Labeling Claims, Primary Jurisdiction/Preemption, Typicality Requirement
On December 20, 2018, the Ninth Circuit affirmed the dismissal without leave to amend of a putative class action complaint against Blue Diamond Growers, which alleged that the term “almond milk” on Blue Diamond’s beverages was misleading. Painter v. Blue Diamond Growers, — Fed.Appx. —, 2018 WL 6720560 (9th Cir. Dec. 20, 2018). The named … Continue Reading

Eleventh Circuit Works Out Preclusion and Preemption Issues in Protein Powder Dispute

By Lawrence Weinstein, Jeff Warshafsky and Emily H. Kline on Posted in Labeling Claims, Lanham Act, Primary Jurisdiction/Preemption
On December 4, 2018, the Eleventh Circuit partially reversed the dismissal of Hi-Tech Pharmaceuticals’ suit against HBS International Corp. for alleged violations of the Lanham Act and Georgia’s Uniform Deceptive Trade Practices Act. Hi-Tech Pharmaceuticals, Inc. v. HBS International Corp., No. 17-13884 (11th Cir. 2018). Hi-Tech alleged that the label of HBS’s protein-powder supplement – … Continue Reading

District Court Filters Out Preempted “Spring Water” False Advertising Claim

By Alexander Kaplan and Jeff Warshafsky on Posted in Lanham Act
Earlier this year, we covered a decision from the District of Connecticut finding state law false advertising claims against the bottled water company Poland Spring preempted by the FDCA. Flowing from that decision is the case we are covering today: Frompovicz v. Niagara Bottling, LLC, 2018 WL 4465879 (E.D. Pa. Sept. 18, 2018).… Continue Reading

Federal “Spring Water” Standards Runneth Over State Claims

By Lawrence Weinstein and Daniel Werb on Posted in Class Actions, FDCA, Labeling Claims, Primary Jurisdiction/Preemption
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 … Continue Reading

Update on Second Circuit Ruling in Church & Dwight v. SPD Swiss Precision Diagnostics “Weeks Estimator” Home Pregnancy Test Litigation

By Alexander Kaplan and Daniel Werb on Posted in Deceptive Trade Practices, FDCA, Injunctions, Lanham Act, Primary Jurisdiction/Preemption, Uncategorized
Last month we summarized the Second Circuit’s important decision in a dispute between plaintiff-appellee Church & Dwight and its principal competitor, defendant-appellant SPD Swiss Precision Diagnostics, concerning SPD’s false advertising of its Clearblue Weeks Estimator Home Pregnancy Test.  As we reported, a Second Circuit panel in September unanimously affirmed rulings by Judge Alison Nathan of … Continue Reading

Second Circuit Affirms Ruling that SPD Swiss Precision Diagnostics Falsely Advertised Clearblue Weeks Estimator Home Pregnancy Test and Did so Intentionally and Egregiously

By Alexander Kaplan and Daniel Werb on Posted in Deceptive Trade Practices, FDCA, Injunctions, Lanham Act, Primary Jurisdiction/Preemption
In an important recent false advertising decision in a suit brought by home pregnancy test manufacturer Church & Dwight against its principal competitor SPD Swiss Precision Diagnostics, a Second Circuit panel unanimously affirmed orders by Judge Alison Nathan of the Southern District of New York, following a bench trial on liability, (i) holding that SPD … Continue Reading
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