Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Food and Beverages

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 … Continue Reading

No Meat on the Bones: Proposed Vegetarian Class Action against Buffalo Wild Wings Failed to Plead Actual Injury

Recently, a federal district court judge in the Southern District of New York dismissed claims asserted under New York General Business Law § 349 on behalf of a putative class of vegetarian customers of Buffalo Wild Wings. The court’s decision found that although the plaintiff had standing to bring her claims, her allegations did not … Continue Reading

No More Baby Talk: Class Certification Denied in Gerber False Advertising Suit

The Northern District of California recently denied class certification to a plaintiff who alleged that Gerber Products misbranded nutritional claims about baby food products in violation of state and federal labeling laws.  Bruton v. Gerber Products Co. et al.  The plaintiff had previously moved to certify a damages and an injunctive relief class in 2014.  However, … Continue Reading

Class Certification Denied in Juice Dispute

Recently, a New Jersey federal district court judge refused to certify a class of consumers claiming an orange juice product was mislabeled as “pasteurized.”  In re: Tropicana Orange Juice Marketing and Sales Practices Litigation. According to plaintiffs, Tropicana’s “Pure Premium” orange juice contained added natural flavoring in violation of FDA pasteurization standards.  The court denied the … Continue Reading

Justice (and Lunch) is Served: Second Circuit Holds that Food Truck Branded with Ethnic Slurs is Entitled to First Amendment Protection

In a recently issued decision, the Second Circuit held that a food truck could not be excluded from a New York State lunch program solely because the truck and the food it sells was branded using ethnic slurs.  Wandering Dago, Inc. v. Destito et al.  This case is an early example of how the Supreme … Continue Reading

De-certifiably Natural – Ninth Circuit Finds “All Natural” Label May be Misleading While Upholding Class Decertification

The Ninth Circuit Court of Appeals recently reversed in part and affirmed in part a Northern District of California ruling (discussed previously, here) concerning the “All Natural Fruit” labeling on Dole’s packaged fruit products. Brazil v. Dole Packaged Foods, LLC, No. 14-17480, 2016 WL 5539863 (9th Cir. Sept. 30, 2016). The appeals court reversed the lower court’s … Continue Reading

Sugar Rush: FDA Rejects Use of “Evaporated Cane Juice” to Describe Sweeteners

For years, food companies have been using the term “evaporated cane juice” in the ingredients list on food products. This has resulted in a number of lawsuits by consumers claiming that the term misled them into thinking those products did not contain sugar, including this failed putative class action against KIND.  In May 2016, the … Continue Reading

FDA New-trition Rules

Last month, the FDA finalized amendments to the Nutrition Facts labeling rules for packaged foods and dietary supplements to reflect developments in nutrition science, including new scientific information regarding the link between diet and chronic diseases such as obesity and heart disease. Here are the highlights:… Continue Reading

“KIND” of Nutritious—FDA Permits “Healthy” Label and Agrees to Rethink Its Definition of “Healthy” Foods

The Food and Drug Administration has kindly permitted Kind LLC to use the term “healthy” on its snack bars again, but with the caveat that the term must only be used in text clearly presented as part of Kind’s corporate philosophy, and not as a claim about the products’ nutrient content.… Continue Reading

Snack Time: Court Finds Prominent Pictures of Produce on Fruit Snacks Not Deceptive

Last month, the Northern District of California held that prominent photographs of fruits and vegetables on Plum Organics’ food packaging were not enough to mislead a reasonable consumer into believing that the pictured produce were the product’s predominant ingredients. A picture on food packaging may speak a thousand words but, according to the court, reasonable … Continue Reading

Ruling Allows Gerber False Advertising Suit to Crawl Onward

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

Makers’ Mark Two: Bourbon Distiller Slips another “Handmade” False Advertising Suit

In another blow to the class action plaintiff’s bar, a court in the Southern District of California has dismissed a false advertising class action against Maker’s Mark for describing its product as “handmade.” We recently covered a similar case involving the same bourbon and “handmade” claim in the Northern District of Florida, which was also … Continue Reading

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

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

Catch of the Day: Tuna Fish Brand StarKist Swims into a Sea of Trouble After Agreeing to Settle Claims Against It

StarKist Co. recently agreed in principle to a $12 million settlement with a putative class of plaintiffs concerning alleged under-filling of tuna fish cans. But agreeing on the dollar figure seems to have been the easy part; the parties in this bitterly-fought case have become embroiled in motion practice about the allocation of that $12 … Continue Reading

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

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

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

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

Tripping the Light Cran-tastic: Ocean Spray Washes Away Attempted Class Certification

Class certification in false advertising cases often fails due to problems with the class itself such as ascertainability. But what happens when a class action plaintiff admits she didn’t rely upon the purportedly deceptive claims in making her purchasing decision? A recent decision in California’s “food court” may provide an answer. In Major v. Ocean … Continue Reading

Court’s Maine Message to Plaintiff Suing Poland Spring: You Don’t Have a Leg to Stand on

The District Court of Maine recently provided a reminder that – even in the post-Lexmark world of Lanham Act false advertising standing – Article III standing requirements can still impose a meaningful barrier on plaintiffs. On March 18, 2015, District of Maine Judge George Z. Singal dismissed Maine Springs, LLC’s complaint against Nestle Waters North … Continue Reading

Cereal Killer: NAD Un-Sweetens Some of MOM’s Breakfast Cereal Claims

A recent National Advertising Division (“NAD”) decision serves as a reminder that comparative taste preference claims can quickly sour without methodologically sound substantiation. Taste-testers (and advertisers) should take heed. In Mom Brands Co., breakfast cereal maker Post brought an NAD challenge against two categories of claims Malt-O-Meal Brand Cereals Co. (“MOM”) made comparing Post cereals to … Continue Reading

Nutritious and Judicious: Nutribullet Blender False Ad Claim Survives Attack from Ninjas and Phantom Reviewers

While courts may not officially be in the business of ghostbusting, a district court in California recently offered some support to a blender manufacturer apparently haunted by a phantom reviewer. The court found that negative internet reviews posted by the shadowy “Chris W” – who is allegedly a front for a competitor – can suffice … Continue Reading

No Longer at Lager-Heads: Anheuser-Busch Settles Claim over Kirin Beer’s Origin

Early this year, Anheuser-Busch settled a class suit filed against it by two Miami residents who alleged that the company was deceptively advertising Kirin beer as imported from Japan, when in fact it is brewed in the United States using domestic ingredients. The plaintiffs, Lady J. Suarez and Gustavo E. Oliva, claimed they had each … Continue Reading

(Baby)Food for Thought: In Alleging Unlawful and Misleading Product Labeling, Plaintiff Needed More Than One Gerber Baby

Last month, Judge Lucy H. Koh of the Northern District of California granted summary judgment in favor of Gerber because the plaintiff failed to satisfy the “reasonable consumer standard” in backing up her allegations that Gerber baby food labeling was misleading in violation of California state law. The case illustrates an important threshold to the reasonable … Continue Reading

Consumer Class Actions Brewing in Florida as Federal Courts Deny a Series of Motions to Dismiss

While California historically has a reputation as the most plaintiff-friendly forum for alleged consumer class action deceptive advertising cases, Florida is emerging as stiff competition for the title after a recent trio of orders denying motions to dismiss consumer fraud actions emerged out of the United States District Court for the Southern District of Florida. … Continue Reading

Wasted Away in Margaritaville: With Unascertainable Class, District Court Denies Class Certification in Skinnygirl Margarita Case

Alleging violations of Illinois statutory and common law, Amy Langendorf brought suit on behalf of “Any and all persons who purchased ‘Skinnygirl’ Margarita spirits in Illinois from March 1, 2009 until the date notice is disseminated” against Skinnygirl Cocktails, LLC, Bethenny Frankel, SGC Global, LLC, and Beam Global Spirits & Wine, Inc. According to Langendorf, … Continue Reading
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