Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Supplements

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

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

If Class Action Litigants Could Turn Back Time (The Text Would Have Said So)

By Lawrence Weinstein, Carl Mazurek and Kelly Landers Hawthorne on Posted in Class Actions, Deceptive Trade Practices
Last week, the Supreme Court unanimously reversed a Ninth Circuit decision, resolving a circuit split in ruling that Federal Rule of Civil Procedure 23(f)’s 14-day deadline for a losing party to file a petition for permission to appeal an order granting or denying class certification is not subject to equitable tolling. Nutraceutical Corp. v. Lambert, … Continue Reading

Eleventh Circuit Works Out Preclusion and Preemption Issues in Protein Powder Dispute

By Lawrence Weinstein, Jeff Warshafsky and Emily H. Kline on Posted in Labeling Claims, Lanham Act, Primary Jurisdiction/Preemption
On December 4, 2018, the Eleventh Circuit partially reversed the dismissal of Hi-Tech Pharmaceuticals’ suit against HBS International Corp. for alleged violations of the Lanham Act and Georgia’s Uniform Deceptive Trade Practices Act. Hi-Tech Pharmaceuticals, Inc. v. HBS International Corp., No. 17-13884 (11th Cir. 2018). Hi-Tech alleged that the label of HBS’s protein-powder supplement – … Continue Reading

IntenseX False Advertising Claims Lack Power and Performance

By Lawrence Weinstein and Lee Popkin on Posted in Deceptive Trade Practices, Labeling Claims
Last month, in Kanfer v. Pharmacare US, Inc., U.S. District Judge Marilyn Huff of the Southern District of California dismissed on what were essentially puffery grounds a consumer suit styled as a class action alleging that defendant PharmaCare falsely advertised its nutritional supplement, IntenseX, as an aphrodisiac that “would improve. . .sexual power and performance.” … Continue Reading

FDA New-trition Rules

By Alexander Kaplan and Daniel Werb on Posted in Regulatory
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

Can You Hear Me Now? NAD Finds Scientific Evidence Insufficient to Support Dietary Supplement’s Claims of Ear Discomfort Relief

By Lawrence Weinstein, Jennifer Yang and Evelyn Pang on Posted in NAD/NARB/CARU/ERSP
Clarion Brands, LLC recently received an earful from the National Advertising Division (“NAD”) about its marketing of the dietary supplement Lipo-Flavonoid Plus. Clarion had been marketing Lipo-Flavonoid Plus with advertising that the NAD found reasonably conveys the message that the supplement substantially reduces or eliminates tinnitus and the symptoms of Ménière’s disease—conditions that affect an … Continue Reading

Punch to the Gut: Government Denied Contempt Ruling in Bayer Probiotic Case

By Alexander Kaplan and Jeff Warshafsky on Posted in Regulatory
Bayer recently avoided a contempt finding concerning its Phillips’ Colon Health (“PCH”) probiotics advertising. Bayer advertised PCH as “Promot[ing] Overall Digestive Health” and “Help[ing] Defend Against Occasional Constipation, Diarrhea, Gas and Bloating.” The Government contended Bayer violated a 2007 consent decree requiring Bayer to possess “competent and reliable scientific evidence” substantiating such claims. To support … Continue Reading

Ruling Allows Gerber False Advertising Suit to Crawl Onward

By Alexander Kaplan, Jennifer Yang and James Unger on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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

Procera AVH Marketers Can Forget About Claiming to Reverse Memory Loss

By Lawrence Weinstein and Sarah Sullivan on Posted in Deceptive Trade Practices, Regulatory
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

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

By Alexander Kaplan and Daniel Werb on Posted in Class Actions, Labeling Claims, Regulatory
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

California Court Has a Bone to Pick with Male Enhancement Pill Maker

By Celia Cohen on Posted in Deceptive Trade Practices, Labeling Claims
We try to avoid puns in this blog but sometimes, well, we just can’t help it. The makers of “Rockhard Weekend,” a male sex enhancement pill, have successfully sidestepped a claim that they violated federal drug labeling laws but will have to continue to defend against claims that the product’s labelling misleads consumers into believing … Continue Reading

What a Tangled Web We Weave, When First We Practice to Deceive: Second Circuit Holds that “Deliberate Deception” Creates Legal Presumption of Consumer Confusion and Injury in a Two-Player Market

By John Browning and Alexander Kaplan on Posted in Deceptive Trade Practices, Labeling Claims, Lanham Act
On July 29, the Second Circuit clarified its view that, in a two-player market, willfully deceptive advertising – even non-comparative advertising – creates a legal presumption of consumer confusion and injury, applicable to determination of both liability and damages. This emphatic opinion makes plain the peril that follows a finding that defendant willfully engaged in … Continue Reading

Courts In 9th Circuit Continue To Split On Ascertainability: “All Natural” Class Action Dies On the Vine But Sexual Energy Supplement Suit Has Staying Power

By Victoria Loughery, Lindsey Olson and Lee Popkin on Posted in Ascertainable Class, Class Actions, Labeling Claims
On June 13, 2014, U.S. District Judge Charles R. Breyer of the Northern District of California, issued an order denying class certification to a putative class of consumers who had purchased ConAgra food products labeled as “natural,” finding that the putative class was unascertainable due to the lack of purchase records or any other reliable … Continue Reading

Federal Judge Trims Diet Supplement Maker’s Earnings by $40M and Orders Recall of Banned Labeling

By Jeff Warshafsky and Jennifer Yang on Posted in Deceptive Trade Practices, Labeling Claims, Regulatory
On May 14, a Georgia federal court dished out severe contempt sanctions against Hi-Tech Pharmaceuticals, its president and two others for violating a 2008 court order relating to the advertising and labeling of Hi-Tech’s “diet supplements.”  In addition to ordering a recall, the court also ordered the Hi-Tech defendants to disgorge not only their profits … Continue Reading
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