Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Marketing

Judge Recommends Lanham Act Litigant “Shake it Off”

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Nicole Sockett on Posted in Lanham Act
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

Ninth Circuit Drowns Out Alkaline Water Suit

By Lawrence Weinstein, Baldassare Vinti, Anisha Shenai-Khatkhate and Jessica Griffith on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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

A Dose of Relief: Federal Judge Dismisses Walgreens Infant Acetaminophen Class Action

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Alyson Tocicki on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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

Top Dog: Champion Petfoods Wins Dismissal of Dog Food Suit

By Lawrence Weinstein, Jeff Warshafsky and Jessica Griffith on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Minnesota federal district court Judge Patrick J. Schiltz recently dismissed with prejudice an alleged class action claiming that Champion Petfoods misrepresented the quality of its dog food and ingredients by failing to disclose traces of heavy metals and barbiturates. In dismissing the suit, Judge Schiltz found no reasonable consumer was likely to interpret the contested … Continue Reading

Ninth Circuit Claws Back “Krab Mix” Class Action Dismissal

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Alyson Tocicki on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
A split Ninth Circuit panel recently reversed the dismissal of claims against P.F. Chang’s regarding the chain’s use of the term “krab mix” in the ingredients list for certain sushi rolls. Kang v. P.F. Chang’s China Bistro, No. 20-55138 (9th Cir. Feb. 9, 2021). Plaintiff claimed he purchased P.F. Chang’s “krab mix” sushi rolls because … Continue Reading

Not a Kernel of Standing: Ninth Circuit Affirms Dismissal of Complaint Against Pop Secret

By Lawrence Weinstein, Jeff Warshafsky and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices
The Ninth Circuit recently affirmed the dismissal of a putative class action alleging Diamond Foods engaged in unfair practices, created a nuisance, and breached the warranty of merchantability by including partially hydrogenated oils as an ingredient in Pop Secret popcorn.  McGee v. S-L Snacks Nat’l, Case No. 17-55577 (9th Cir. December 4, 2020). Plaintiff Jacquelyn … Continue Reading

Judge Has No “Reservations” Dismissing Advertising Suit Against Omni Hotels

By Lawrence Weinstein, Jennifer Yang and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices
Judge Cathy Ann Bencivengo of the U.S. District Court for the Southern District of California recently dismissed with prejudice a putative class action alleging that the Omni luxury hotel chain deceptively advertised its hotel room rates on Expedia. In doing so, the Court found plaintiff failed to adequately allege that reasonable consumers would be deceived … Continue Reading

2020 Advertising Law Year in Review

By Lawrence Weinstein, Baldassare Vinti, Jeff Warshafsky, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Lanham Act, NAD/NARB/CARU/ERSP, Regulatory
While 2020 was an eventful year in the world of advertising law, it feels wrong to begin any type of “year in review” without acknowledging the global events of this year, and the challenges they have brought to every individual in one way or another. In our role, we are often in a position of … Continue Reading

Judges Toss Plain “Vanilla” Deceptive Labeling Claims

By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
The beverage industry came out on top in a pair of recently dismissed lawsuits alleging the use of the term “vanilla” on drink labels was misleading, where the vanilla flavor allegedly did not come exclusively from the vanilla bean plant. Howard Clark v. Westbrae Natural, No. 20-cv-03221-JSC (N.D. Cal. December 1, 2020); Ryan Cosgrove et … Continue Reading

The Parent Trap: Ninth Circuit Affirms Dismissal of Complaint Against Advertiser’s Subsidiary and Distributor

By Lawrence Weinstein, Jennifer Yang and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
The Ninth Circuit recently upheld a decision granting a motion to dismiss a putative class action challenging the accuracy of “natural” labeling on soap products made by Grisi Mexico, where the lawsuit was filed against the manufacturer’s U.S. subsidiary and distributor, rather than against the manufacturer itself. Prudencio v. Midway Importing, Inc., No. 19-55150, 2020 … Continue Reading

Seventh Circuit Sides with Plaintiffs in Appeal of “100% Grated Parmesan Cheese” Claims

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Bryant D. Wright on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
The Seventh Circuit recently reversed a district court’s dismissal of a class action false advertising complaint, holding that an ingredient list’s disclosure of components other than parmesan cheese did not foreclose the possibility of reasonable consumers being deceived by a “100% Grated Parmesan Cheese” front label claim.  Bell v. Publix Super Markets, Nos. 19-2581 & … Continue Reading

Much A-Brew About Nothing: Court Dismisses False Ad Suit Against Starbucks

By Lawrence Weinstein, Jeff Warshafsky and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Alison Nathan of the U.S. District Court for the Southern District of New York recently dismissed with prejudice a putative class action alleging Starbucks misrepresented itself as a “premium” coffee retailer. In doing so, the Court found that plaintiffs failed to allege Starbucks made any statements likely to mislead reasonable consumers, and that nearly … Continue Reading

Ninth Circuit Credits Arbitration Clause and Class Action Waiver in Experian Advertising Suit

By Lawrence Weinstein, Jennifer Yang and Bryant D. Wright on Posted in Class Actions, Deceptive Trade Practices
In a putative class action concerning Experian’s marketing of its “Experian Credit Score” service, the Ninth Circuit recently affirmed a lower court order granting Experian’s motion to compel arbitration based on an arbitration clause in its terms and conditions. That arbitration clause also included a class action waiver, thus effectively barring plaintiff from bringing her … Continue Reading

“Fishy” Allegations: Judge Finds Plaintiffs’ Testimony in False Ad Suit Against SeaWorld Lacked Credibility

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices
Following a three-day bench trial, Judge Jeffrey S. White of the Northern District of California recently held that Plaintiffs lack standing to pursue their false advertising claims against SeaWorld relating to its treatment of orca whales. Kelly Nelson, et al. v. SeaWorld Parks and Entertainment, No. 15-cv-02172-JSW (N.D. Cal. October 13, 2020). Plaintiff Nelson alleged … Continue Reading

As Challenges to Recycling Claims Rise, Use Caution When Giving the “Green” Light

By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, NAD/NARB/CARU/ERSP, Regulatory
NPR and PBS recently released an attention-grabbing investigation titled “How Big Oil Misled The Public Into Believing Plastic Would Be Recycled.”  According to the investigation, beginning in the late 1980s, “big oil” began a $50 million-a-year ad campaign promoting the benefits of plastic, while simultaneously informing the public that plastic is recyclable. In fact, according … Continue Reading

Survey Evidence in Amended Complaint Does Not Add Enough Juice to Save “Natural” Claims Against Mott’s Apple Products

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Eric Wertheim on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Beth Freeman of the U.S. District Court for the Northern District of California recently dismissed with prejudice a putative class action alleging that Mott’s apple-based products were deceptively labeled “Natural” and as containing “All Natural Ingredients.” Yu v. Dr Pepper Snapple Group, No. 18-cv-06664-BLF (N.D. Cal. Oct. 6, 2020). In doing so, Judge Freeman … Continue Reading

Conagra Slips Away from Parkay Oil Spray Serving Size Claims

By Lawrence Weinstein, Jeff Warshafsky and Eric Wertheim on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Primary Jurisdiction/Preemption, Regulatory
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

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Emily H. Kline on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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

By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices
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

By Lawrence Weinstein, Jeff Warshafsky and Carl Mazurek on Posted in Deceptive Trade Practices, Labeling Claims
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

By Lawrence Weinstein, Jeff Warshafsky and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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

By Lawrence Weinstein, Jeff Warshafsky and Emily H. Kline on Posted in Class Actions, Deceptive Trade Practices
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

By Lawrence Weinstein, Jeff Warshafsky and Eric Wertheim on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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
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