Products Liability Conflict of Laws Communications & Media

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Putting A Lotion Claim In The Primary Jurisdiction Basket

When Jame Gumb urged his captive to put lotion on her skin, he was not concerned with improving its firmness. While Buffalo Bill from "Silence of the Lambs" may not be who most would think about when reading Franz v....more

Feel The Burn: Court of Appeal Strikes Down State Law Claims Regarding Mislabeled Sunscreen Products Under Finding of Federal...

In Eckler v. Neutrogena (certified for publication 7/1/15, Case No. B2536910), the California Court of Appeal, Second Appellate District, upheld the trial court’s determination that plaintiffs’ claims of mislabeling sunscreen...more

The Label on Your "Handmade" Whiskey Is Causing More Problems Than You Think

The recent market for artisanal and handcrafted goods has spawned a spate of consumer class actions against makers of popular liquors, including Tito’s Vodka, Maker’s Mark, and Jim Beam, for using terms like “handmade,”...more

Weird "Science" = Preemption

Here at the DDL Blog, we write from time to time on food litigation. You might think it’s out of left field, and sometimes we even justify our food posts by pointing out that the “F” in FDCA stands for “Food.” But we need...more

Recent Ninth Circuit Decisions in False Advertising Consumer Class Action Cases May Prevent Preemption and Relegate the Primary...

In two recent decisions, Reid v. Johnson & Johnson, __ F.3d __, Case No. 12-56726 (9th Cir. March 13, 2015) and Astiana v. The Hain Celestial Group, Inc., __ F.3d __, Case No. 12-17596 (9th Cir. April 10, 2015), the Ninth...more

Court Finds that Class Action Plaintiffs’ False Advertising Claims are Stripped Bayer Based on Federal Preemption

In the recent case of Gallagher v. Bayer AG, Case No. 14-cv-04601-WHO (N.D. Cal. March 10, 2015), the plaintiffs asserted that the defendants Bayer AG and related entities (collectively, “Bayer”) engaged in false advertising...more

First Circuit Finds Federal Preemption of State Tort Claims That Conflict With A Medication’s FDA-Approved Labeling & Warnings

An opinion issued by the U.S. Court of Appeals for the First Circuit on February 20, 2015 held that the Federal Food, Drug, and Cosmetic Act (“FDCA”) preempted claims that Lexapro’s U.S. Food and Drug Administration (FDA)...more

Q&A Series: Class Action Litigation Has Focused On Claims By Spirits Producers on Labels, Websites, and In Marketing Campaigns

In some cases class action plaintiffs are making claims based on an allegedly incorrect statement on a label. Does TTB approval of a label protect a producer against claims based on the content of the label? TJC: There...more

Pom Wonderful Drops Ninth Circuit Appeal of State Claims Filed Against Coca-Cola

On September 19, 2014, Pom Wonderful, LLC dropped its Ninth Circuit appeal of a ruling that dismissed its state deceptive advertising and unfair competition claims against Coca-Cola, a sibling case to a recent Supreme Court...more

Lanham Act Claims Are Not Precluded by Compliance with the FDCA

In POM Wonderful LLC v. Coca-Cola Co., decided last month, the U.S. Supreme Court confirmed that companies can bring unfair competition actions under the Lanham Act even when their competitors have complied with the Federal...more

Food Litigation Newsletter - August 2014

In This Issue: - Recent Significant Rulings ..Court Dismisses Most of plaintiff’s Claims Based on Regulatory Violations ..Court Dismisses MSG Claims in Part on Preemption Grounds ..Court Partially...more

Supreme Court Decision May Lead to More False Advertising Claims in Food and Beverage Industry

The Supreme Court's ruling in Pom Wonderful LLC v. Coca-Cola Co. may open the door to more false advertising claims regarding food and beverage labeling....more

POM v. Coke Does Not Alter The Landscape for Food False Advertising Class Actions

After the oral argument in POM Wonderful LLC v. Coca-Cola Co., No. 12-761, the Supreme Court appeared all but certain to allow competitors to sue for false advertising under the Lanham Act over labels of FDA-regulated food...more

Recent Supreme Court Decision on “Truth-in-Labeling” Has Far-Reaching Implications

On April 28, 2014, we reported on the United States Supreme Court’s involvement in the juice-labeling lawsuit between POM Wonderful LLC (“POM”) and Coca-Cola (“Coke”). In POM Wonderful LLC v. Coca-Cola Co. (“POM”), POM sued...more

U.S. Supreme Court: Pom’s Mislabeling Suit Against Coke Not Precluded by FDA Regulations

Recently, the Supreme Court ruled, 8-0, that Pom Wonderful LLC could pursue mislabeling claims under the federal Lanham Act against the Coca-Cola Company, even though the label at issue complied with FDA labeling regulations....more

Supreme Court Holds That Lanham Act False Advertising Claims Are Not Preempted by FDCA

Earlier today, the U.S. Supreme Court unanimously held that a Lanham Act false advertising case may be brought even if Food and Drug Administration (FDA) beverage labeling regulations permit use of the challenged claim....more

Supreme Court Decides POM Wonderful LLC v. Coca-Cola Co.

Petitioner POM Wonderful LLC makes and sells juice products, including a pomegranate-blueberry juice blend. Coca-Cola Company makes a juice blend with a label that prominently displays the words "pomegranate" and "blueberry"...more

U.S. Supreme Court Allows Pom Wonderful to Pursue Lanham Act Claims against Coca-Cola

Further to our April 23 post on the Pom Wonderful-Coca-Cola U.S. Supreme Court case, the Court on Thursday June 12 issued an unanimous decision (with Justice Breyer taking no part in the consideration or decision of the...more

Food Companies Should Expect More False Advertising Claims

The Supreme Court holds that competitors may bring Lanham Act claims challenging food and beverage labels that are regulated by the FDA....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

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

Court To Decide Whether FDA Regulation Of Lead In Baby Food Pre-empts California Proposition 65

One of the rare California Proposition 65 trials began on April 8, 2013 – the Environmental Law Foundation (ELF) suit in Alameda County, CA Superior Court (ELF Lead In Food Case, available at...more

9th Circuit’s POM Wonderful Ruling Could Influence Food Class Actions

Originally published in Washington Legal Foundation on August 3, 2012. Class action lawyers looking for a shakedown have gone on a food binge. They have focused on the food industry and the ever-obliging federal court...more

Two More From The Supreme Court

Generic Manufacturers Win Preemption In Mensing The Court decided 5-4 in favor of generic preemption today in Pliva, Inc. v. Mensing, No. 09–993, slip op. (U.S. June 23, 2011). We’d like to talk about Mensing, but it’s a...more

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