Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: New York

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

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

The Fun Did Stop for Pringles False Advertising Class Action

By Lawrence Weinstein, Jeff Warshafsky and Emily H. Kline on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
On January 31, 2020, Southern District of New York Judge Alvin Hellerstein denied Plaintiff Matthew Marotto’s motion for reconsideration of an order denying class certification in his lawsuit against Pringles potato chip maker Kellogg over allegedly misleading labeling of Pringles cans. Marotto v. Kellogg, No. 1:18-cv-03545 (S.D.N.Y. Jan. 31, 2020).… Continue Reading

Plaintiff Fails to Butter Up Court with Mashed Potato Suit

By Lawrence Weinstein, Jeff Warshafsky and Carl Mazurek on Posted in Deceptive Trade Practices, Labeling Claims
We have previously written about decisions addressing food product labels, and the messages that these labels convey about the products’ ingredients. In Jessani v. Monini, the Second Circuit found that a product label for “white truffle flavored” olive oil did not imply that the product contained actual white truffles. Not long afterwards, the Second Circuit … Continue Reading

Suit Over Use of American Heart Association Certification Mark Maintains a Pulse

By Alexander Kaplan and Carl Mazurek on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Is it deceptive to label food products with the mark of the American Heart Association (“AHA”) without disclosing that the AHA was paid for use of its certification mark? This was the question raised by a putative class action lawsuit in the Northern District of New York, which largely survived dismissal on March 25, 2019. … Continue Reading

Snack Bar Class Action Powers On After USDA Action and FDA Inaction

By Lawrence Weinstein, Jennifer Yang and Russell Kostelak on Posted in Class Actions, Regulatory
Unlike a fine wine, a snack bar does not get better with age. Neither, apparently, does litigation. Last month, Judge William H. Pauley III in the Southern District of New York lifted a years-long stay in a lawsuit against KIND LLC concerning the allegedly false marketing of KIND snack products as “all-natural” and “non-GMO.” In … Continue Reading

SDNY Judge Not Sweet on Dannon’s Bid for a Preliminary Injunction

By Lawrence Weinstein, Jeff Warshafsky and Emily H. Kline on Posted in Deceptive Trade Practices, Injunctions, Lanham Act
In a battle of leading yogurt beverage makers, Chief Judge Colleen McMahon of the U.S. District Court for the Southern District of New York recently denied Dannon’s application for a preliminary injunction in its false advertising suit against Chobani. The result of Judge McMahon’s decision is that Chobani can continue to sell its yogurt drinks … Continue Reading

State of Nature: District Courts Diverge in Treatment of “Natural” False Advertising Claims

By Lawrence Weinstein, Carl Mazurek and Kelly Landers Hawthorne on Posted in Labeling Claims
Two recent contrasting decisions in class action false advertising cases alleging misleading uses of the term “natural” for food products underscore the difficulty in predicting the likelihood of achieving an early stage dismissal in these cases. Late last year, Judge Richard Seeborg in the Northern District of California denied Williams-Sonoma’s motion to dismiss an alleged … Continue Reading

Failure to Disclose Claims Washed Away in Facial Scrub Case

By Lawrence Weinstein, Jennifer Yang and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
On December 17, 2018, Judge Andrew J. Guilford in the U.S. District Court for the Central District of California granted defendant Unilever’s motion for summary judgment, dismissing all claims in a putative class action concerning St. Ives Apricot Scrub. Browning v. Unilever United States, Inc., 2018 WL 6615064 (C.D. Cal. Dec. 17, 2018). Plaintiffs alleged … Continue Reading

Cheez-Its Class Action Revived in “Whole” by Second Circuit

By Lawrence Weinstein and Jeff Warshafsky on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
We recently blogged about the Second Circuit’s December 3, 2018 decision in Jessani v. Monini, where, applying the reasonable consumer standard, the Court of Appeals unanimously affirmed the dismissal with prejudice of a complaint alleging that the label of an extra virgin olive oil product advertised as “truffle flavored” falsely implied that the product contained … Continue Reading

Second Circuit Affirms Dismissal of Truffle Kerfuffle

By Alexander Kaplan and Daniel Werb on Posted in Labeling Claims
Last year, we wrote about Jessani et al v. Monini North America, a case in the Southern District of New York in which the court dismissed as a matter of law plaintiffs’ complaint alleging that Monini falsely advertised its “White Truffle Flavored Extra Virgin Olive Oil” product as containing actual white truffle. The case turned … Continue Reading

EDNY Sticks a Fork in Angus Steak Sandwich Class Action Complaint

By Alexander Kaplan, Daniel Werb and Carl Mazurek on Posted in Class Actions
A federal court in the Eastern District of New York recently dismissed a putative class action filed against Dunkin’ Brands alleging deceptive advertising with respect to its Angus Steak & Egg Breakfast Sandwich and Angus Steak & Egg Wake-Up Wrap. Judge Carolyn Amon dismissed the claims by out-of-state plaintiffs on jurisdictional grounds, and found the … Continue Reading

Diet Soda Lawsuit Fizzles Out

By Lawrence Weinstein, Jeff Warshafsky and Russell Kostelak on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Recently, a plaintiff’s purported class action against Diet Dr. Pepper went flat when a California federal judge held that the term “Diet” alone on a soft drink label does not constitute a claim that the soft drink will assist in weight loss. In Becerra v. Dr. Pepper/Seven Up, Inc., Plaintiff Shana Becerra brought a putative … Continue Reading

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

By Lawrence Weinstein and Tiffany Woo on Posted in Class Actions
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

New York Federal Court Latest to Dismiss Outlet Pricing Class Action

By Lawrence Weinstein and Lee Popkin on Posted in Labeling Claims
Last month, Judge Valerie Caproni of the Southern District of New York dismissed with prejudice a putative deceptive pricing class action filed against Burberry.  This is the first decision within the Second Circuit to determine whether shoppers claiming to have been victimized by discount price advertising in outlet stores have suffered actual injury for purposes … Continue Reading

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

By Alexander Kaplan and Jeff Warshafsky on Posted in First Amendment
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

Second Circuit Dismisses Claims of Would-Be Ad-Blockers

By Alexander Kaplan, Daniel Werb and Carl Mazurek on Posted in Class Actions, Deceptive Trade Practices
On November 22, 2017, the Second Circuit in Heskiaoff v. Sling Media affirmed the dismissal of a class action complaint against Sling Media that alleged deceptive business practices in connection with Sling’s introduction of advertisements into its television streaming service.  In a summary order, the panel affirmed the district court’s holding that the complaint and proposed … Continue Reading

Truffle Kerfuffle: Truffle Lawsuit Not on the Menu for Plaintiffs

By Alexander Kaplan on Posted in Labeling Claims
Truffles are renowned as one of the rarest delicacies in the world.  Perhaps not quite as rare, but still fairly uncommon, is the dismissal with prejudice of a false advertising class action without the plaintiffs being afforded even a single opportunity to amend their complaint. We are pleased to report today on a victory that … Continue Reading

A Court in the Sunshine State Blocks Injunctive Relief against Neutrogena Sunscreen Claims; Meanwhile P&G Cannot Flush Charmin Claims for the Same Relief in New York

By Alexander Kaplan and Benjamin Rattner on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Assume the following: plaintiff brings a putative class action under state consumer protection laws alleging that he bought a product based on false claims on its packaging. He seeks monetary and injunctive relief. However, plaintiff vows never to buy the product displaying the allegedly false advertising again or cannot purchase the product so-labeled because the … Continue Reading
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