This week the FTC announced that it finalized its revisions to the Endorsement Guides, which give advertisers guidance on ensuring that their use of endorsements or testimonials complies with the FTC Act. At the same time, the FTC also announced an updated accompanying guidance document, “FTC’s Endorsement Guides: What People are Asking.” While the revised … Continue Reading
Judge Richard Seeborg of the Northern District of California recently dismissed a putative class action alleging that Sprout Foods’s nutritional claims on its baby and toddler food labels misled consumers into believing that the products provide physical health benefits. In their complaint, plaintiffs alleged that the products are “harmful both nutritionally and developmentally” due to … Continue Reading
It has been almost forty years since Bruce Springsteen first famously celebrated being “Born in the USA.” From an advertising industry perspective, this song’s lasting popularity is no surprise; as advertisers know, “Made in the USA” is often a selling point for American industries. The FTC knows this too. In late 2021, the FTC finalized … Continue Reading
Judge Cathy Seibel of the Southern District of New York recently dismissed a putative class action lawsuit challenging various environmental impact and animal welfare claims made by Allbirds in ads for its wool shoes. In doing so, the court determined that plaintiff’s allegations, which largely consisted of criticisms of the wool industry in general, did … Continue Reading
2021 saw well over 500 new class actions in the advertising space. With the number of these cases increasing, it is more important than ever for businesses to stay on top of the latest trends, including the types of products and claims that are being targeted. Our full report, available here, goes into detail on … Continue Reading
Cryptocurrency, social media, and celebrity or influencer endorsements have all been top of mind recently, including for advertisers. A newly filed lawsuit is asking a federal court to consider the intersection of these areas, with potential implications for advertisers looking to expand into the cryptocurrency space. EthereumMax executives (“Executive Defendants”) and a few well-known celebrities, … Continue Reading
Judge Rachel Kovner of the Eastern District of New York recently dismissed a putative class action challenging Whole Foods Market’s label claims that its Oats & Flax Instant Oatmeal contains “dehydrated cane juice solids” and is “100 % Whole Grain – 18g or more per serving.” Plaintiffs alleged these labels communicate that the oatmeal is … Continue Reading
In this final installment of our “On Notice” series about the FTC’s Notice of Penalty Offenses Concerning Endorsements, we discuss when and how to properly disclose the existence of a material connection between an advertiser and an endorsing party. Per the FTC’s Notice of Penalty Offenses, “[i]t is an unfair or deceptive trade practice to … Continue Reading
Continuing our “On Notice” series about the FTC’s Notice of Penalty Offenses Concerning Endorsements, we address the FTC’s prohibition against using testimonials to (1) make or imply unsubstantiated or otherwise deceptive performance claims even if such testimonials genuinely reflect the endorser’s own experience, and (2) misrepresent explicitly or implicitly that the experience described by endorsers … Continue Reading
In Yamasaki v. Zicam, LLC, Case No. 21-cv-2596 (N.D. Cal. 2021), Plaintiff alleged certain Zicam® cold remedy products were falsely advertised as “clinically proven to shorten colds.” On this basis, Plaintiff sought to represent a putative class of California consumers for seven different Zicam products. Zicam, represented by Proskauer, moved to dismiss Plaintiff’s amended complaint … Continue Reading
Continuing our series on the FTC’s Notice of Penalty Offenses Concerning Endorsements, this post considers the FTC’s statement that it is unlawful under Section 5 of the FTC Act “for an advertiser to continue to advertise an endorsement unless the advertiser has good reason to believe that the endorser continues to subscribe to the views … Continue Reading
Continuing our series on the FTC’s Notice of Penalty Offenses Concerning Endorsements, this post considers the issues of falsely attributed, mischaracterized, and fabricated endorsements – practices that the FTC highlighted in its Notice as unfair or deceptive. In particular, the FTC stated that: It is an unfair or deceptive trade practice to make claims which … Continue Reading
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
Beginning in 2020, the advertising world saw an explosion of putative class-actions challenging the use of “vanilla” to describe products where the vanilla flavoring allegedly is not derived exclusively from the vanilla bean plant. We previously blogged about several such cases. One plaintiff’s attorney alone, Spencer Sheehan, has filed—and continues to file—hundreds of these cases. … Continue Reading
We recently blogged about Champion Petfoods’ success in a Minnesota district court case alleging that it misrepresented the quality of its dog food and ingredients. Well, Champion Petfoods came back to defend its title in another case involving nearly identical allegations, this time in the Seventh Circuit. The Seventh Circuit recently affirmed a Wisconsin district … Continue Reading
A Ninth Circuit panel recently affirmed dismissal of a putative consumer class action alleging Trader Joe’s misleadingly labeled its store brand honey as “100% New Zealand Manuka Honey,” where plaintiffs’ pollen content testing showed that only about 60% of the honey was derived from Manuka flower nectar. In doing so, the Court reinforced the importance … Continue Reading
Judge Victor Marrero of the Southern District of New York recently largely denied a motion to dismiss claims that Canada Goose misled consumers by representing that the fur on Canada Goose jackets is ethically and sustainably sourced. In doing so, the court determined plaintiff’s allegations were “thin,” but viewing the complaint in the light most … Continue Reading
In a unanimous precedential decision, a Ninth Circuit panel recently affirmed the dismissal of a putative class action against Trader Joe’s, which alleged that the statement “Up to 5% Retained Water” on Trader Joe’s poultry product labels was misleading. According to Plaintiff, her independent testing showed Trader Joe’s poultry products contained a higher percentage of … Continue Reading
Judge Todd W. Robinson of the Southern District of California recently dismissed a putative class action against Edgewell Personal Care, the makers of Wet Ones antibacterial hand wipes, alleging it misled consumers by representing Wet Ones kill 99.99 percent of germs and are “hypoallergenic” and “gentle.” In dismissing plaintiff’s claims, the court found no reasonable … Continue Reading
The Eighth Circuit recently affirmed the dismissal of a class action alleging that Unilever’s differential pricing of men’s and women’s antiperspirants violated the Missouri Merchandising Practices Act (MMPA). In doing so, the Court found plaintiff’s claims wrongly equated marketing targeted to women with point-of-sale price discrimination by gender (i.e. charging a different price for the … Continue Reading
In a recent opinion out of the Southern District of New York, Judge William H. Pauley III certified three classes of plaintiffs in New York, California, and Florida who allege that KIND LLC, the manufacturer of KIND Bars, deceptively marketed several products as “all natural” and “non-GMO,” even though they purportedly contain synthetic and genetically … Continue Reading
Judge Joshua D. Wolson of the U.S. District Court for the Eastern District of Pennsylvania recently dismissed a Lanham Act suit that challenged critical comments on a blog (not this one!). The case was brought by plaintiff Crash Proof Retirement, a retirement investment adviser who was the subject of the criticism. The defendant author of … Continue Reading
The Ninth Circuit recently affirmed the dismissal of a putative class action alleging Trader Joe’s misled consumers by representing its Alkaline Water product as “ionized to achieve the perfect balance.” In rejecting plaintiff’ allegations that the advertising referred to balancing the consumer’s internal pH rather than the balanced pH of the product itself, the Court … Continue Reading
Judge Edward Davila of the U.S. District Court for the Northern District of California recently dismissed with prejudice a putative class action alleging Walgreens misled consumers into believing its store-brand Infants’ Pain & Fever Acetaminophen is specially formulated for infants. In dismissing the suit, the court found the product’s labeling would not be likely to … Continue Reading
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