In a decision issued earlier this year, Mier v. CVS Health, 2023 U.S. App. LEXIS 19472 (9th Cir. 2023), the Ninth Circuit held (per our research, for the first time) that class-wide damages models must be based on conjoint...more
On June 16, 2023, the Supreme Court ruled in United States ex rel. Polansky v. Executive Health Resources, Inc., that (i) under the False Claims Act, the government may move to dismiss a False Claims Act (“FCA”) action...more
On June 1, 2023, the United States Supreme Court decided two consolidated cases, United States ex rel. Schutte v. SuperValu Inc. and United States ex rel. Proctor v. Safeway, 589 U.S. ___ (2023), holding that a defendant’s...more
Four years ago, in a widely covered decision, the Second Circuit held that the phrases “WHOLE GRAIN” and “MADE WITH WHOLE GRAIN” on the front of Cheez-It cracker boxes could plausibly deceive reasonable consumers into...more
A few months ago, we previewed an imminent decision that would address, for the first time, a long-unsettled question for class actions brought under New York’s General Business Law (“GBL”): can a class of consumers obtain...more
New York’s consumer protection laws are particularly attractive to the plaintiff’s bar. One reason is the availability of “statutory” damages under New York’s General Business Law (“GBL”). While most states’ consumer...more
A common maxim in the service industry is that the customer always knows best. But a recent decision from the Tenth Circuit suggests that the maxim has its limits when it comes to interpreting ambiguous marketing claims. In...more
In this age of mass manufacturing, each unit in a product line is usually the same as every other. But manufacturing isn’t perfect. Sometimes, for various reasons, some units in a product line will deviate from the...more
Consumers in false-advertising cases have long targeted food packaging for purportedly misrepresenting the presence or quantity of an ingredient in a product. These litigants typically contend that a product’s name—e.g.,...more
A few months ago, we analyzed the Ninth Circuit’s decision in Webb v. Trader Joe’s Company, No. 19-56389 (June 4, 2021), which held that a private plaintiff’s challenge to poultry labeling claims were preempted by federal...more
Hold onto your chips. This blog has covered an array of dubious mislabeling theories, but a recent complaint filed in Illinois federal court may take the guac: a proposed class-action complaint against Frito-Lay North...more
When you’re in the market for a fresh haircut or a new restaurant, innumerable business and product reviews are available to guide you towards a cleaner trim or tastier takeout. But what happens when the reviewer is not an...more
This blog previously reported on the Seventh Circuit oral argument in Bell v. Albertson Companies Inc.—a case turning on whether a reasonable consumer would understand the phrase “100% Grated Parmesan cheese” on a cheese...more
Federal law expressly authorizes manufacturers of dietary supplements to make “structure/function” claims—that is, claims about the effect of particular nutrients on the structure or function of the human body. (Think:...more
In a recent decision, Ezaki Glico v. Lotte International American Corporation, the Third Circuit rejected a manufacturer’s claims of trade dress infringement regarding Pocky, a chocolate covered cookie stick which Ezaki Glico...more
In its recent decision granting a preliminary injunction in GlaxoSmithKline v. Boehringer Ingelheim Pharmaceuticals, No. 19-5321, the United States District Court for the Eastern District of Pennsylvania enjoined a...more
Over the past few months, federal courts throughout the country have stayed litigation challenging the labeling of products infused or made with cannabidiol, better known as CBD. These courts, acknowledging that labeling and...more
The past few months have witnessed a veritable sugar rush of decisions dismissing consumer class action complaints alleging that baking chips and candies labeled as “white” falsely imply the presence of actual white...more
Last week, the Second Circuit issued an important published decision holding that previously injured consumers who seek to challenge product labeling lack constitutional standing to pursue claims for injunctive relief, and...more
What distinguishes a “cosmetic” from a “drug” under the Federal Food, Drug, and Cosmetic Act (FDCA)? The FDA has struggled to offer clear guidance on the distinction, but the classification as one or the other (or both)...more
A California district court recently decertified, after a jury trial, a class of vitamin supplement purchasers in a false advertising case. As we detailed in a prior post, a federal judge declared a mistrial in the same case...more
Earlier this month, in a consumer action challenging alleged slack-fill in boxes of Junior Mints and Sugar Babies, the Ninth Circuit considered the reach of the “catalyst theory” for recovering attorney’s fees under...more
As coronavirus (COVID-19) spreads across the country, some companies are advertising their products’ usefulness in preventing or treating the disease. But federal agencies—including the Food and Drug Administration (FDA) and...more
Food and beverage advertising, like other forms of speech, is usually entitled to First Amendment protection – even if it may not always enjoy the same caliber of protection as, for example, journalism or political speech. ...more
It was only a matter of time. As we anticipated last summer, the plaintiffs’ bar recently filed a slew of false advertising suits against manufacturers of products infused or made with cannabidiol, a/k/a CBD....more