Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Marketing

Conagra Slips Away from Parkay Oil Spray Serving Size Claims

Conagra Brands recently emerged victorious when Judge William H. Orrick of the U.S. District Court for the Northern District of California granted summary judgment in its favor, tossing claims that the company disguises the fat and calorie content of its Parkay Spray vegetable oil spray product (“Parkay”) with artificially small serving sizes. Allen v. Conagra … Continue Reading

Judge Dunks Plaintiffs’ Claims and Dismisses Oreo False Advertising Lawsuit

Judge Edward R. Korman of the U.S. District Court for the Eastern District of New York recently granted Mondelēz Global’s motion to dismiss a putative class action challenging the advertising for its signature Oreo cookies. Harris v. Mondelēz Global, No. 19-cv-2249-ERK (E.D.N.Y. July 28, 2020). Plaintiffs alleged the Oreo manufacturer’s front label statement “Always Made … Continue Reading

Court Gives Vanilla Ice Cream False Advertising Claims a Frosty Reception

Judge Louis L. Stanton of the Southern District of New York recently granted defendant Wegmans Food Markets’motion to dismiss claims alleging that Wegmans falsely labels its vanilla ice cream. Plaintiffs sued Wegmans for false advertising, negligent misrepresentation, and deceptive acts in violation of federal and state law, alleging that despite labeling its product “vanilla ice … Continue Reading

Burger King Wins “Whopper” of a Case: Federal Court Finds No Promise of Method of Preparation in Advertisements for Meatless Burger

Judge Raag Singhal of the Southern District of Florida recently granted Burger King’s motion to dismiss a putative class action challenging its advertising for its plant-based “Impossible Burger,” and its motion to deny class certification. Williams v. Burger King, No. 19-24755 (S.D. Fla. July 20, 2020). Plaintiffs alleged Burger King’s advertisements for its non-meat “Impossible … Continue Reading

Seventh Circuit Cans District Court Injunction in Beer Brands Corn Syrup Suit

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

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

Second Circuit Finds Consumer Suit Against Dunkin’ Not Well Done

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

La Croix Loses Rule 11 Battle but Wins War, as Plaintiff Retracts Lawsuit Allegations

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

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

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

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

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

Proskauer in San Diego at the 41st Annual ANA/BAA Marketing Law Conference

The Association of National Advertisers and the Brand Activation Association will be hosting their 41st annual Marketing Law Conference at the Marriott Marquis in San Diego, CA from November 4-6. Proskauer is a sponsor of the conference, and will be speaking on two separate panels. Lawrence Weinstein, the co-chair of Proskauer’s Intellectual Property Litigation Group and … Continue Reading

NAD Not Influenced by Verification Platform’s Claims

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

Chambers Pharmaceutical Advertising 2019: USA

Proskauer partners Lawrence Weinstein and Alexander Kaplan wrote the book – 11 chapters of it – on U.S pharmaceutical advertising law. The 2019 Chambers Global Practice Guide: Pharmaceutical Advertising is a great, curated resource for drug companies, hospitals, medical practices and other U.S. health care organizations. The guide provides insight to topics such as: FDA and … Continue Reading

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

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

San Francisco City Ordinance Takes a Hard Hit in Ninth Circuit Soft Drink Lawsuit

Can an en banc decision of a federal appellate court be controversial even when every single active judge of that court agrees with the outcome? The answer is emphatically yes, as confirmed by the Ninth Circuit’s January 31, 2019 en banc decision in American Beverage Ass’n et al. v. City & County of San Francisco, … Continue Reading

SCOTUS to Decide If Courts Must Defer to the FCC’s Interpretation of “Unsolicited Advertisements” under the TCPA

On November 13, 2018, the Supreme Court agreed to consider the amount of deference a federal court is required to give the Federal Communications Commission in determining what constitutes an unsolicited advertisement within the meaning of the Telephone Consumer Protection Act (TCPA). PDR Network v. Carlton & Harris, No. 17-1705. The case is scheduled for … Continue Reading

Kimberly-Clark Unable to Flush Wet Wipes Case

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

$15 Million False Ad Verdict Boosts Damages In Probiotic IP Dispute

On November 20, 2018, a years-long dispute before Judge Theodore Chuang in the District of Maryland over probiotics culminated in a gut-wrenching $18 million jury verdict against defendant pharmaceutical companies.  The case is De Simone v. VSL Pharmaceuticals, Inc. et al., No. 8:15-cv-01356. The dispute involved numerous claims and counterclaims, including both a claim and a … Continue Reading

Can Inflating Jury Verdicts and Settlements Injure More than Just Your Reputation? Kansas Law Firm Sues Competitor For False Advertising

It’s not every day that a law firm sues a competing firm for false advertising. Earlier this month, however, a Wichita, Kansas personal injury law firm did just that. Brave Law Firm sued rival firm Truck Accident Lawyer’s Group and allegedly related entities in the U.S. District Court for the District of Kansas, alleging violations … Continue Reading

Cricket Wireless’s Bid to Enforce Arbitration Clause Against Customers Met with Mediocre Reception

On November 3, 2015, Judge Alsup of the Northern District of California denied Cricket Wireless’s motion to enforce an arbitration clause against customers who say they never saw or agreed to the clause. Plaintiffs allege that Cricket falsely advertised “UNLIMITED 4G/LTE services throughout the United States” when the network was capable of providing that coverage … Continue Reading

Procera AVH Marketers Can Forget About Claiming to Reverse Memory Loss

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

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

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

False Advertising Suit Concerning Department of Defense Standards Misfires

In a case that teaches important lessons about the burden of proving an advertisement false at trial, Judge Ronald Lew of the Central District of California held that Elkay Plastics Company was not liable for allegedly false statements that its StratoGrey line of polyethylene products meets military specifications. In 2012 Caltex Plastics sued Elkay arguing … Continue Reading
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