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Thank You Commissioner O'Rielly - FCC Acknowledgment of TCPA Confusion is Long Overdue

But One Vote is Not Enough for Action, Nor Does Action Assure a Favorable Outcome - FCC Commissioner Michael O’Rielly recently blogged that “It is Time to Provide Clarity” on issues swirling around application of the...more

Pom Wonderful Brings Food Labeling Dispute To The U.S. Supreme Court: When Are Claims Based On Allegedly Improper Product Labeling...

A long-standing false advertising dispute between beverage companies Pom Wonderful and Coca-Cola has reached the United States Supreme Court and carries far-reaching implications for other food labeling litigation. On January...more

FDA to Revisit “Evaporated Cane Juice” Draft Guidance

Earlier this month, the FDA announced that it would reopen the comment period on its draft guidance for the industry concerning use of the term “evaporated cane juice” (ECJ). Draft Guidance for Industry on Ingredients...more

Petition for Certiorari Filed Regarding Preclusive Effect of Likelihood of Confusion Findings by the Trademark Trial and Appeal...

In advising clients and making strategic decisions about whether to bring or defend inter partes proceedings before the Trademark Trial and Appeal Board ("TTAB"), trademark practitioners need to consider carefully whether...more

Food Litigation Newsletter - February 2014

In This Issue: - Recent Significant Developments and Rulings ..Smart Balance Milk Labeling Suit Not Preempted ..Mott’s “No Sugar Added” Labeling Lawsuit Narrowed ..Court Preliminarily Approves Trader...more

Calling 7th Circuit: Robocalls And Federal Preemption

In a recent decision, the U.S. Court of Appeals for the Seventh Circuit held that the federal Telephone Consumer Protection Act did not preempt an Indiana state law with more restrictive prohibitions on autodialed calls —...more

Allergan, Inc. v. Athena Cosmetics, Inc. (Fed. Cir. 2013) -- FDCA Does Not Preempt State Unfair Competition Laws

If you have ever wondered how popular eyelash enhancers like RevitaLash and Latisse produce their effects, Allergan, Inc. v. Athena Cosmetics, Inc. provides the answer: these products comprise prostaglandin derivatives. The...more

Supreme Court Will Rule on Whether Agency-Approved Beverage Label Can Be Challenged as ‘False Advertising’ in Federal Court

On January 10, 2014, the U.S. Supreme Court agreed to hear an appeal by Pom Wonderful LLC against The Coca-Cola Company. The Court will examine whether Pom can bring a federal Lanham Act false advertising claim against a...more

Industry Group To Weigh In On GMO Labeling Debate

With the rise in state legislative efforts to require labeling for foods produced using genetic engineering or “GMOs,” the Grocery Manufacturers Association (GMA) is poised to enter the labeling debate by working with federal...more

Supreme Court Grants Certiorari in POM’s Attack on FDCA/Lanham Act Preemption

On Friday, the Supreme Court granted the certiorari petition of Pom Wonderful in its Lanham Act false advertising case against Coca-Cola. Pom Wonderful LLC v. Coca Cola Co., 679 F.3d 1170 (9th Cir. 2012), cert granted, ___...more

TCPA Connect -- Jan 13, 2014

Good Faith Belief in a Consumer’s Consent Found to be Valid Defense to TCPA Claim - Despite a material question about whether the defendant had express consent to contact the plaintiff, a California federal court judge...more

California Appellate Court Holds That Federal Law Preempts Unfair Competition Law Claims Tied to Organic Label

In a case of first impression in the state courts, a California appellate court delivered an early Christmas present Dec. 23 to beleaguered food and beverage companies facing an avalanche of lawsuits under California’s Unfair...more

Floodgates To New York Telemarketing Class Actions Under The TCPA Are Open, Says Second Circuit

Just in time for the holidays, the Second Circuit’s recent decision in Bank v. Independence Energy Group LLC has dropped a lump of coal in the business community’s stocking. In this case, the “lump of coal” is an open door to...more

Ninth Circuit: City Requirement That Cell-Tower Company Obtain Voter Approval Upheld

When T-Mobile sought to place a cell-tower in a park owned by the City of Huntington Beach, California, the City granted the company all the regulatory approvals it required. But the City also informed T-Mobile that before...more

Fifth Circuit Holds State AG Credit Card Add-On Suit Not Subject To Federal Jurisdiction

On December 2, the U.S. Court of Appeals for the Fifth Circuit held that a set of parens patriae suits filed by the Mississippi Attorney General (AG) against credit card issuers is not subject to federal jurisdiction under...more

Seventh Circuit Holds TCPA Does Not Preempt State Law Banning Robocalls

On November 21, the U.S. Court of Appeals for the Seventh Circuit held that the federal Telephone Consumer Protection Act (TCPA) does not preempt an Indiana statute that bans most robocalls without exempting calls that are...more

A House Divided: Federal Judges Take Conflicting Positions on Wiretap Act Claims Against Google in California's Northern District

Last week, the U.S. District Court for the Northern District of California dismissed a class action claim that Google’s modifications to its customer privacy policies and subsequent sharing of customer data across Google...more

7th Circuit Issues Troubling TCPA Non-Preemption Ruling

The U.S. Court of Appeals for the Seventh Circuit held in Patriotic Veterans v. Indiana that the state’s automatic dialing-announcing device (ADAD) statute is not preempted by provisions that govern prerecorded calls and...more

New FDA Rule on Drug Labeling May Mean Increased Exposure and an Uncertain Path for Generic Pharmaceutical Manufacturers

Litigation over the labeling of pharmaceuticals dates back to the mid-1800s. In only the last five years, however, two watershed decisions by the United States Supreme Court have established clear, albeit controversial,...more

Goodbye to Generic Preemption? FDA Publishes Proposed Rule

Today, the U.S. Food and Drug Administration (FDA) published a long-awaited proposed rule in the Federal Register in an effort to “create parity” between brand-name and generic manufacturers for their labeling obligations. 78...more

Thoughts on the Stored Communications Act, Federal Preemption and Supremacy, and State Laws on Fiduciary Access to Digital...

As of the date of this posting, seven states have recently passed laws and at least eighteen other states are considering new laws granting fiduciary access to an incapacitated or deceased person’s online accounts and other...more

Can A State Impose Civil Penalties On A Drug Or Device Company For Using A Federally-Approved Label?

Overview - States have increasingly brought actions under Medicaid fraud or consumer protection statutes seeking civil penalties and restitution from the makers of prescription drugs. Many top-selling drugs have been...more

Illinois Supreme Court Invalidates 'Amazon' Sales Tax Law: Now What?

The Illinois Supreme Court, affirming a lower court decision, invalidated the state's "click-through" nexus law. This law required out-of-state Internet retailers who use in-state web marketing "affiliates" to collect sales...more

Illinois Supreme Court Holds Internet Sales Tax Preempted by Federal Statute

On Friday morning, the Illinois Supreme Court handed down its opinion in one of its most high-profile pending cases. The Court held in Performance Marketing Association, Inc. v. Hamer that the federal Internet Tax Freedom Act...more

Illinois Supreme Court Holds Federal Law Preempts Click-Through Nexus Law

In a decision released this October 18th, the Illinois Supreme Court upheld the Circuit Court of Cook County’s decision invalidating the Illinois click-through nexus statute in Performance Marketing Association v. Hamer. The...more

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