Topic Archives: False Advertising

Ninth Circuit Nixes San Francisco Soda Warning

Advertisers and purveyors of sugar-sweetened beverages can rest a little easier now.  The Ninth Circuit recently ordered a district court to issue a preliminary injunction to enjoin the 2015 San Francisco Ordinance requiring inclusion of a warning on all advertisements for sugar-sweetened beverages.[1]  The Ninth Circuit found that the required warning likely impinged on the ...›

September 27, 2017False Advertising, Food Misbranding

The Ninth Circuit’s Food Court Menu: A Status Update

A few years back, the Northern District of California was dubbed the “food court” based on the influx of food misbranding class actions claiming that alleged FDA regulatory infractions constituted violations of California consumer deception statutes.  The first cases in the misbranding pack were appealed to the Ninth Circuit, with plaintiffs challenging district courts’ denials ...›

Court Declines to Certify Class in False Advertising Case Without Survey Evidence of a Common Consumer Definition

On June 7, 2017, a Central District Court of California declined to certify a class of consumers who alleged that 5-Hour Energy’s marketing of an energy drink was misleading, finding that individual factual questions regarding the effect of 5-Hour Energy’s advertising statements on consumers predominated over questions common to all plaintiffs.  In re 5-Hour Energy ...›

The Revival of ECJ Lawsuits: Sweet Tooth For Plaintiffs, or Toothless Claims?

Introduction.  On May 22, 2017, plaintiff Jessica Gomez filed an opposition on behalf of a putative class of consumers urging a federal district court judge not to dismiss her lawsuit against Jelly Belly Co. (“Jelly Belly”) for allegedly misleading consumers by listing “evaporated cane juice” (ECJ) instead of “sugar” in the ingredient list of its ...›

Ninth Circuit Affirms No Private Right of Action to Enforce Lack of Substantiation Claims in SeroVital False Advertising Class Action Case

The Ninth Circuit recently affirmed a district court’s dismissal of plaintiff’s unfair competition law and consumer legal remedies claims, finding that neither claim provided plaintiff with a private cause of action to enforce the substantiation provisions of California’s unfair competition and consumer protection law.  See Kwan v. SanMedica International, No. 15-15496. Background of the Case.  ...›

Affirmed

Speaking Engagement: False Advertising Class Actions – Practitioner’s Guide to Class Certification, Damages and Trial

On Wednesday, June 14, 2017 at 12:00 pm, Morrison & Foerster partner Purvi Patel will be presenting at The Bar Association of San Francisco (BASF) CLE program “False Advertising Class Actions – Practitioner’s Guide to Class Certification, Damages and Trial.” Ms. Patel and her fellow panelists will discuss new developments and tips regarding prosecuting, defending ...›

Judge Koh Issues First Blow to “Added Sugars” Plaintiffs

The Big Picture:  On Tuesday, Judge Koh granted Kellogg’s Motion to Dismiss in its entirety in Hadley v. Kellogg Sales Company, No. 5:16-cv-04955-LHK (N.D. Cal.).  Hadley is one of three cases[1] against well-known cereal makers pending in the Northern District of California.  All three actions challenge various factually true “health” representations on the cereal packaging ...›

Ginkgo

District Court Sacks Ginkgo Biloba False Advertising Case

On February 2, 2017, the Central District of California terminated a false advertising lawsuit against Schwabe North America, Inc. and Nature’s Way Products, LLC (Defendants), based on allegations that the companies misrepresented the cognitive benefits of two Ginkgo biloba products. The court granted Defendants’ motion for summary judgment, finding that Plaintiff Kathleen Sonner (Plaintiff) had failed to establish that the claimed memory benefits were provably false. ...›

The Latest Word (or Text) on TCPA Standing Post-Spokeo and Consent

On January 30, 2017, in Van Patten v. Vertical Fitness Group, No. 14-55980, the Ninth Circuit Court of Appeals found that a Telephone Consumer Protection Act (TCPA) plaintiff had sufficiently alleged an Article III injury-in-fact, under the United States Supreme Court’s Spokeo, Inc. v. Robins decision.  The Ninth Circuit ultimately affirmed summary judgment in favor of the defendants, holding that the plaintiff had consented to receiving text messages from a gym by providing his phone number with his membership application and had not revoked that consent simply by cancelling the gym membership. ...›