Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Partner

Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class action lawsuits. Claudia also regularly counsels clients in the food, cosmetics, retail, and technology industries. She represents companies in false advertising disputes before the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc.<h5>More about Claudia</h5>Claudia is active in MoFo’s pro bono efforts, and recently traveled to El Paso, Texas, to work with families separated and detained at the border. She is also supervising a pro bono collaboration with Equal Rights Advocates, a nonprofit fighting for gender justice in work places and schools across the country. The initiative will help students who have been victims of sexual assault, attempted assault, or harassment find support and seek justice. Claudia is also a board member of Bay Area Legal Aid and a former board member of Equal Rights Advocates. Claudia is an editor and frequent contributor to MoFo’s <a href="https://classdismissed.mofo.com/">Class Dismissed</a> blog, which provides reports about the latest defense news, developments, and trends in class action lawsuits and product liability issues that affect consumer-facing companies. Her perspectives are also respected in the larger legal community: Claudia has published articles about class action and false advertising issues, and is a co-author of Chapter 7 — “Unfair Competition in California Business Litigation 2016” — of The Recorder. She also regularly speaks at conferences on class action and advertising trends. Claudia is currently serving as a Lawyer Representative for the Northern District of California. She received her J.D. degree in 2004 from Berkeley Law (Boalt Hall School of Law), where she was an associate editor of the Berkeley Technology Law Journal.

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Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

Adam J. Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.Mr. Hunt has extensive experience representing consumer products companies, financial institutions, and technology firms in class action cases and complex commercial disputes before state and federal trial courts, as well as in arbitrations. Clients seek Mr. Hunt’s counsel for his creative, strategic thinking in high-stakes, high-profile matters. He has represented clients facing claims under false advertising, antitrust, and privacy laws throughout the country, securing wins at the pleading stage, summary judgment, and trial, in addition to negotiating favorable settlements, often early in the case. Representative experience includes successfully securing rulings dismissing two putative false advertising class action cases against one of the best-known consumer electronics companies in the world; obtaining a complete win on summary judgment for a major shipping and logistics company in a multimillion-dollar commercial dispute; appearing as counsel at trial for a leading financial institution in a $100 million commercial dispute, winning a bench trial verdict; and prevailing on motions to dismiss false advertising class actions against a leading Greek yogurt company.Mr. Hunt is also an editor of the firm’s <a href="https://classdismissed.mofo.com/" target="_self">Class Dismissed blog</a>, which provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class action lawsuits that affect consumer-facing companies.Mr. Hunt maintains an active pro bono practice and is the recipient of the New York State Bar Association’s 2017 President’s Pro Bono Service Award for the First Judicial Department, the 2018 Public Service Award from New York University School of Law, and Morrison Foerster’s Kathi Pugh Award for Pro Bono Services.Mr. Hunt received his B.A. with honors from Swarthmore College and his J.D. cum laude from New York University.

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Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

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Alexandra Preece Barlow

Adam J. Hunt

The Future of Section 230: Protection Against Product Liability Claims?

New Wave of PFAS Legislation Aimed at Consumer Products

CPSC Releases Annual Report on Deaths and Injuries Involving Nursery Products

CPSC Proposes New Safety Rules for Infant Rockers

CPSC Commissioners Abstain from Retracting Infant Sleep Product Statements

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It is no secret that the U.S. Consumer Product Safety Commission (CPSC) is ramping up its efforts to enforce various aspects of the Consumer Product Safety Act (CPSA), especially the provisions about a company’s failure to timely report substantial product hazards.  An ongoing case against Spectrum Brands, Inc. (“Spectrum”)<a id="_ftnref1" href="#_ftn1" name="_ftnref1">[1] </a> may shed light on whether certain CPSC enforcement efforts would be time-barred and limit the penalties available under the CPSA.Under the CPSA, it is clear that companies must “immediately” report such hazards; this means within 24 hours, with certain exceptions.  What is not clear is how long CPSC has to bring suit seeking civil penalties for a company’s failure to report.  As these CPSC-backed actions become more frequent and costly, one company—Spectrum Brands, Inc. (Spectrum)—has cried foul.  Specifically, Spectrum has moved for partial summary judgment based on the relevant statute of limitations, arguing that CPSC’s claims for civil penalties stemming from delayed reporting are untimely.Spectrum began importing and distributing coffeemakers in early 2008.  Over the next four years Spectrum received approximately 1,600 consumer complaints alleging the handles of these coffeemakers were breaking, causing hot coffee to spill on consumers.  Spectrum did not report the alleged hazard to CPSC until April 2012.  In June 2015, the government filed its complaint against Spectrum, seeking civil penalties and other relief for Spectrum’s failure to timely report the product hazard.  Significantly, the government alleges that Spectrum violated the CPSA’s reporting requirements by “no later than” May 2009.  According to the government’s motion for summary judgment, filed last week, Spectrum had received 60 reports by the end of May 2009, and more than 300 by the end of 2009.  By that time, according to the government, Spectrum had sufficient information in the form of consumer complaints to trigger the relevant reporting requirements.Central to the parties’ dispute is when CPSC’s clock began running on certain claims.  Neither party disputes that claims under the CPSA are subject to a general statute of limitations regulating government enforcement actions.  Specifically, 28 U.S.C. § 2462 provides that “an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued.”  Accordingly, the government must bring an action for civil penalties within five years of when the claim “first accrued,” but what that means is unclear.The government argues that the claim for a company’s failure to timely report is a “continuing violation” that accrues anew each day the violation occurs, and that the five-year statute of limitations commences only when the company actually reports to CPSC.  Under this “continuing violation” argument, the government would have had five years to file its suit after Spectrum finally reported (April 2012), making the government’s claims timely.  Spectrum disagrees, pointing to the government’s own allegations that Spectrum’s duty to report the alleged hazard arose “no later than” May 2009.  Accordingly, Spectrum argues the claim “first accrued” in May 2009, over six years before the government filed suit and therefore the claims seeking penalties relating to delayed reporting are time-barred.The court’s ruling on Spectrum’s motion could have a dramatic impact on consumer product companies as it is the first time a court will decide the amount of time CPSC has to initiate an action for failure to report.  If the court rules in favor of Spectrum and finds the government should have brought its claims within five years after Spectrum should have reported, the civil penalties claims against Spectrum will be dismissed and other companies facing potential penalties may find relief based on a statute of limitations defense.  On the other hand, if the government prevails, the clock to seek civil penalties against companies for failure to report claims will only start after the company reports the hazard at issue.  This could significantly increase the amount of time the government has to seek such penalties, and could affect both reporting and document retention obligations.  We will continue to provide updates on this important matter.<a id="_ftn1" href="#_ftnref1" name="_ftn1">[1]</a> United States of America v. Spectrum Brands, Inc., No. 3:15-CV-00371-WMC (W.D. Wis. 2015).

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

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Erin Bosman is chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

Julie Park provides analytic and strategic counsel for issues in product life cycle, product liability and defective products, consumer class actions, and more.

Julie Park

Julie Park | Product Liability Lawyer

Statute of Limitations Taking the Steam out of CPSC-Backed Enforcement Action?

It is no secret that the U.S. Consumer Product Safety Commission (CPSC) is ramping up its efforts to enforce various aspects of the Consumer Product Safety Act 

Statute of Limitations Taking the Steam out of CPSC-Backed Enforcement Action?

On March 21, 2016, the Eleventh Circuit vacated a district court’s decision to grant class certification to California and Texas consumers claiming that Electrolux washing machines have a design defect that makes them prone to staining clothes and leaving them with a moldy smell, finding plaintiffs failed to satisfy the predominance requirement. Brown, et al. v. Electrolux Home Products, Inc., No. 15-11455, 2016 WL 1085517, 2016 U.S. App. LEXIS 5112.Consumers Target “Smelly” Washers.  Over the past several years, consumers across the country have filed class actions against manufacturers of allegedly “smelly” front-loading washing machines. The lawsuit against Electrolux involves claims under two state consumer protection statutes (the California Unfair Competition Law and Texas Deceptive Trade Practices Consumer Protection Act), based on an alleged failure to disclose design defects, which allegedly cause the stink.District Court Certifies “Smelly Washer” Class.  The plaintiffs moved to certify a class of California and Texas consumers. In opposing class certification, Electrolux argued that the plaintiffs could not satisfy the predominance requirement of Federal Rule of Civil Procedure 23(b)(3) because causation would require individualized proof. The district court disagreed, finding that class members could prove causation through exposure to uniform business practices.  Terrill, et al. v. Electrolux Home Products, Inc., 295 F.R.D. 671 (S.D. Ga. 2013).Eleventh Circuit Vacates Certification.  Electrolux appealed the decision, arguing that the district court misapplied California and Texas law when it concluded that the plaintiffs could prove causation on a classwide basis. The Eleventh Circuit agreed and vacated the class certification decision.  The court concluded that, to proceed as a class action, the plaintiffs must be able to prove classwide exposure to a uniform misrepresentation. The plaintiffs could not do so in this case because there was no evidence that “class members saw any advertisements from [Electrolux], much less uniform advertisements, before they purchased their washing machines.”  Brown, et al., 2016 WL 1085517, at *7, 2016 U.S. App. LEXIS 5112, at *20. Because of this lack of classwide proof, the consumer claims did not satisfy predominance and could not proceed as a class action.“Smelly” Washer Takeaway.  This case establishes that under Eleventh Circuit law, certification of misrepresentation claims requires common evidence that class members were exposed to the allegedly offending statement prior to purchase. Common evidence of purchase alone is not enough for plaintiffs to certify a class.

What’s That Smell?: Eleventh Circuit Vacates Class Certification for Failure to Show Classwide Exposure to Misrepresentations in Electrolux Moldy Washer Case

On March 21, 2016, the Eleventh Circuit vacated a district court’s decision to grant class certification to California and Texas consumers claiming that Electro

What’s That Smell?: Eleventh Circuit Vacates Class Certification for Failure to Show Classwide Exposure to Misrepresentations in Electrolux Moldy Washer Case

We’ve recently reported on numerous district court—and even Ninth Circuit—stays in false advertising actions. Many of these stays have been based on FDA’s consideration of food labeling issues, such as those involving evaporated cane juice (ECJ), the term “natural” or the presence of partially hydrogenated oils (PHOs) in food products. But courts have also stayed cases pending the Ninth Circuit’s review of class certification decisions in misbranding cases, finding that appellate guidance will aid in courts’ consideration of these issues.Now, a mislabeling action against Bimbo Bakeries has been stayed on the latter ground:  Ang v. Bimbo Bakeries USA, Inc., No. 13-cv-01196-HSG (N.D. Cal. March 31, 2016) (Dkt. No. 161) (“Order”). Bimbo is at least the sixteenth Northern District decision to put mislabeling claims on hold pending the Ninth Circuit’s review.What’s on the Ninth Circuit’s Docket? In the upcoming year, the Ninth Circuit will review a number of the misbranding cases that have flooded this Circuit. The two key class action cases where district courts are awaiting guidance, however, are:  Jones v. ConAgra Foods, Inc., No. 14-16327 (9th Cir. Nov. 24, 2014), which addresses the ascertainability requirement, and Brazil v. Dole Packaged Foods, LLC, No. 14-17480 (9th Cir. Dec. 18, 2014), which addresses the proper standard for damages models under Comcast Corp. v. Behrend. Brazil, which was dismissed on summary judgment, also raises issues regarding required proof of consumer deception as well as reliance and materiality requirements for claims sounding in fraud.<a href="#_ftn1" name="_ftnref1">[1]</a>Judge Puts Bimbo Bakeries Action on Hold. On March 25, 2016, Northern District of California Judge Haywood Gilliam issued an order to show cause why plaintiffs’ mislabeling action against Bimbo Bakeries should not be stayed pending resolution of these two appeals. In doing so, he noted that several courts in the District have stayed cases in light of the pending appeals in Jones and Brazil. The parties submitted a joint statement in response, indicating that neither opposed the stay.After analyzing factors courts use in considering stays, Judge Gilliam concluded that a stay was warranted. Because both parties agreed to the stay, neither would be harmed. Most importantly, “it would be an inefficient and imprudent use of judicial resources to rule on the pending motion for class certification when the Ninth Circuit may offer ‘substantial guidance, if not new law, that will materially impact the Court’s discussion in the instant case.’”  (Order at 2:10-14 (citation omitted).) The court accordingly stayed the entire action pending the Jones and Brazil appeals.“Food Court” Is Quiet. Bimbo and other district court stays of misbranding actions have caused the Northern District, previously dubbed the “food court,” to be relatively quiet on the false advertising front, at least for now. <a href="#_ftnref1" name="_ftn1">[1]</a> Both the Brazil and Jones appeals will be heard together along with another food misbranding class certification decision, Briseno v. ConAgra Foods, Inc., No. 15-55727.  Briseno also involves ascertainability and classwide damages issues.

Bimbo Bakeries Suit On Hold Pending Ninth Circuit Class Certification Appeals

We’ve recently reported on numerous district court—and even Ninth Circuit—stays in false advertising actions. Many of these stays have been based on FDA’s consi

Bimbo Bakeries Suit On Hold Pending Ninth Circuit Class Certification Appeals

The NAD<a href="#_ftn1" name="_ftnref1">[1]</a> recently referred certain green marketing claims made by LEI Electronics Inc. (LEI) regarding its Eco Alkalines batteries to the FTC after the company stated it would not comply with the NAD’s decision and recommendation. LEI Elecs., Inc. (Eco Alkalines Batteries) NAD Report No. 5927 (Feb. 5, 2016).LEI’s “Green” Battery Claims. LEI’s competitor Energizer Brands LLC (Energizer) filed a challenge with the NAD regarding LEI’s advertising claims touting the environmental benefits of its Eco Alkalines batteries, including several “carbon neutrality” statements. For example, LEI claims that “every purchase is carbon neutral” and that “by purchasing Eco Alkalines batteries, you’re doing your part to reduce the CO2 and climate change impact brought about by the production, distribution, and disposal of alkaline batteries.” The advertising appeared on a combination of the company’s website, an online commercial, and product packaging.NAD Finds “Green” Claims Lack Substantiation. The NAD relied on the FTC’s Green Guides in finding that LEI lacked substantiation to support its claim. The Green Guides state that an advertiser should not make a carbon offset claim unless the emission reductions “have already occurred or will occur in the immediate future.” Absent that showing, the advertiser “should clearly and prominently disclose if the carbon offset represents emission reductions that will not occur for two years or longer.” While LEI relied on third-party certifications and a “life cycle assessment” that calculated the batteries’ carbon footprint, the NAD found this was insufficient since the Green Guides state that third-party certifications do not eliminate a marketer’s obligation to ensure that it has competent and reliable scientific evidence to substantiate environmental claims. The NAD concluded that third-party certifications alone were insufficient to substantiate LEI’s carbon neutrality claims, and recommended that LEI discontinue the claims.LEI, however, refuses to do so. As such, the NAD has referred the claims at issue to the FTC for further review.<a href="#_ftnref1" name="_ftn1">[1]</a> The National Advertising Division (NAD) of the Council of the Better Business Bureaus.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy mat

Claudia Vetesi

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Battle of the Batteries: NAD Refers LEI Electronics Inc.’s Green Marketing Claims Regarding Its Eco Alkalines Batteries to FTC

Battle of the Batteries: NAD Refers LEI Electronics Inc.’s Green Marketing Claims Regarding Its Eco Alkalines Batteries to FTC

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The NAD recently referred certain green marketing claims made by LEI Electronics Inc. (LEI) regarding its Eco Alkalines batteries to the FTC after the company s

The last weeks of March brought us two interesting and seemingly contradictory opinions that show the many tools that the Consumer Product Safety Commission (CPSC) has at its disposal to enforce its own regulations. These orders also demonstrate that CPSC will not hesitate to deploy resources and engage in simultaneous avenues of enforcement when it views violations as particularly egregious. In the ongoing saga of high-powered, small, rare earth magnet sets (SREMS), CPSC showed its resolve by pursuing an offensive enforcement campaign in both litigation and administrative forums.

Definitely Not Zen – Magnets Attract Unprecedented Action from CPSC

The last weeks of March brought us two interesting and seemingly contradictory opinions that show the many tools that the Consumer Product Safety Commission (CP

Definitely Not Zen – Magnets Attract Unprecedented Action from CPSC

The Ninth Circuit has upheld dismissal of a class action complaint on Twombly/Iqbal plausibility grounds, noting that the standard has its roots in “judicial experience and common sense.”  In Ebner v. Fresh, Inc., — F.3d —-, No. 13-56644, 2016 WL 1056088 (9th Cir. Mar. 17, 2016), the Ninth Circuit affirmed dismissal of various California consumer protection and equitable claims asserted against a manufacturer of high-end lip balm, “Sugar.”  The decision is a solid win for defendants seeking early dismissal based on plausibility grounds.Plaintiff’s Claims.  According to the plaintiff, Fresh deceived consumers because, although the company (accurately) listed the net weight of the product on the label, a plastic stop device attached to the screw mechanism used to access the lip balm prevented 25% of the product from advancing past the tube opening.  Plaintiff claimed that Fresh’s failure to augment the statement regarding the product’s net weight with a supplemental disclosure regarding product accessibility rendered the net weight statement deceptive and misleading.Ninth Circuit Rejects Plaintiff’s Position.  The Ninth Circuit, like the district court before it, disagreed.  In an opinion authored by Judge A. Wallace Tashima, the court concluded that “Plaintiff cannot plausibly allege that the omission of supplemental disclosures about product weight rendered Sugar’s label ‘false or misleading’ to the reasonable consumer.”  Ebner, 2016 WL 1056088, at *4.  The court reasoned that the dispenser tube and screw mechanism used to “push up a solid bullet of lip balm” are “commonplace in the market,” and their mechanics are generally understood by the reasonable consumer.  Id. at *5.  Further, the plaintiff’s allegations made clear that the consumer was able to see whatever product remained below the tube opening.  Thus, “the consumer’s knowledge that some additional product lies below the tube’s opening is sufficient to dispel any deception; at that point, it is up to the consumer to decide whether it is worth the effort to extract any remaining product with a finger or a small tool.”  Id.  The court also affirmed dismissal of plaintiff’s claim that Fresh violated the “slack fill” prohibitions contained in California Business and Professions Code § 12606.  Because nonfunctional slack fill is defined as “empty space” in a product’s container, lip balm that was actually present in the container but below the tube opening was not covered under the plain language of the statute.Takeaway.  Obtaining dismissal of “deception” claims on plausibility grounds can be a challenge for defendants in putative consumer class actions.  But Ebner shows that there are limits to the deference courts must pay to the plaintiff’s pleading.  Where the plaintiff’s allegations are contrary to marketplace norms, “judicial experience,” and/or “common sense,” they may be subject to dismissal under Twombly/Iqbal.  Ebner may well be the new “go to” for arguing implausibility.

Implausibility Wins the Day: Ninth Circuit Affirms Dismissal of Deception Claims Against “Sugar” Lip Balm

The Ninth Circuit has upheld dismissal of a class action complaint on Twombly/Iqbal plausibility grounds, noting that the standard has its roots in “judicial ex

Implausibility Wins the Day: Ninth Circuit Affirms Dismissal of Deception Claims Against “Sugar” Lip Balm

Chobani recently suffered a major setback in its battle with Dannon over the advertising of low-calorie Greek yogurt. Judge David Hurd of the Northern District of New York issued a preliminary injunction on January 29, 2016, barring Chobani from continuing its “Simply 100” campaign—a compendium of television, print, and online ads touting Chobani’s Simply 100 Greek yogurt as containing no artificial sweeteners or preservatives as compared to Dannon’s Light & Fit Greek yogurt. See Chobani, LLC v. Dannon Co., No. 3:16-CV-30, 2016 WL 369364, at *8 (N.D.N.Y. Jan. 29, 2016).Chobani’s Ads. Chobani’s ads attack Dannon for adding sucralose, an artificial ingredient made by adding chlorine compounds to sucrose molecules to form a chloride, to its yogurts. A Chobani television commercial features a woman sitting by a pool, inspecting the ingredients of Dannon’s Light & Fit Greek yogurt, with a voiceover exclaiming that the product contains artificial sweeteners like sucralose, which contains added chlorine. The woman discards the Dannon product and instead chooses Simply 100 Greek yogurt, with a voiceover claiming that Chobani is “the only 100 calorie light yogurt sweetened naturally.” The scene cuts back to the pool with the final shot, which includes the hashtag “#NOBADSTUFF.” Chobani’s print and electronic ads include similar messages and images. The Litigation. Chobani extended its attack to the courtroom, seeking a declaratory judgment that its “Simply 100” campaign was not false, misleading, disparaging, or deceptive under the Lanham Act, 15 U.S.C. § 1125(a). Dannon struck back, asserting Lanham Act and related state law false advertising counterclaims. It also moved for a preliminary injunction to prevent Chobani from continuing its “Simply 100” campaign pending a trial on the merits.Chobani’s Defense. Chobani contended that the statement that sucralose contains added chlorine is literally true and that the remainder of its messages were mere “puffery”: expressions of Chobani’s own opinion that its products are superior. The Court’s Decision. The court disagreed. It concluded that Chobani’s “Simply 100” campaign conveys the literally false message that sucralose in Dannon’s Light & Fit Greek yogurt contains added chlorine, rendering the product unsafe to eat. However, the FDA has determined that sucralose is safe; the chloride compound created to manufacture sucralose is found throughout nature and in numerous natural food sources. By contrast, pool chlorine is a powerful bleach and disinfectant that is harmful if added to foods or ingested. The language and images (such as the pool scene) in Chobani’s ads conveyed the false impression that the chlorine in sucralose is harmful and unsafe.The court concluded that Chobani’s direct attacks against its competitor’s products were more than mere “exaggeration[s] or overstatement[s] expressed in broad, vague, and commendatory language.” 2016 WL 369364, at *8 (citation omitted). And even if the statement that chlorine was added to sucralose were literally true, “the message conveyed by the advertisement may still be ‘literally false’ if its clear meaning, considered in context, is false.” Id. (emphasis added). Here, a consumer could readily conclude that the entire context of the “Simply 100” campaign “unambiguously convey[s] the literally false message that Dannon’s product contains sucralose and is therefore unsafe to consume.” Id. at *9. Dannon thus had met the requirements for a preliminary injunction: (1) it was likely to prevail on its Lanham Act claim; (2) it was likely to suffer irreparable harm if Chobani continued its campaign; and (3) the balance of hardships and public interest weighed in Dannon’s favor. Key Takeaways. As Chobani demonstrates, a puffery defense typically is not effective against Lanham Act and related state law false advertising claims if the ads at issue directly attack a competitor. The decision also demonstrates the importance of analyzing an allegedly false claim in context. While Dannon used this argument offensively, relying on the full context of an advertisement can also be a successful defense to false advertising claims if the defendant can show that the advertisement as a whole clarifies any ambiguities or allegedly misleading statements. Chobani is a reminder to advertisers to consider the full context of their ads, and not to assume that “puffery” offers an easy way out of alleged falsity.

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Chobani Suffers Setback in Greek Yogurt Wars

Chobani Suffers Setback in Greek Yogurt Wars

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Chobani recently suffered a major setback in its battle with Dannon over the advertising of low-calorie Greek yogurt. Judge David Hurd of the Northern District 

On February 2, 2016, the FTC settled claims against Sale Slash LLC regarding the marketing of its weight loss pills, including Premium Green Coffee, Pure Garcinia Cambogia, Premium White Kidney Bean Extract, Pure Forskolin Extract, and Pure Caralluma Fimbriata Extract. FTC v. Sale Slash, Case No. CV15-03107 PA (AJWx). The FTC alleged that Sale Slash misrepresented the effectiveness of its “bogus” weight loss pills, improperly used spam emails, and used fake celebrity endorsements to market its products.As part of the stipulation for a permanent injunction and monetary penalties, Sale Slash agreed to pay $43 million in equitable monetary relief to settle the claims. In addition, the stipulation bars Sale Slash from (1) sending emails that fail to identify the sender, that include misleading subject headings, and/or that lack a proper opt-out option for recipients; (2) using fake celebrity endorsements; and (3) making weight loss or health-related claims unless Sale Slash can substantiate the claims with competent and reliable scientific evidence.

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Diet Pill Company Sale Slash to Pay $43 Million in Settlement with FTC Over Spam Email and Fake Celebrity Endorsements

Diet Pill Company Sale Slash to Pay $43 Million in Settlement with FTC Over Spam Email and Fake Celebrity Endorsements

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On February 2, 2016, the FTC settled claims against Sale Slash LLC regarding the marketing of its weight loss pills, including Premium Green Coffee, Pure Garcin

On January 29, 2016, NAD recommended that Church & Dwight, the maker of OxiClean White Revive, modify or discontinue various advertising claims conveying the message that chlorine bleach is damaging or “scary” if used on white garments. Church & Dwight Co., Inc. v. OxiClean White Revive, Case No. 5919 (Jan. 29, 2016). The NAD challenge was filed by competitor The Clorox Company, whose rival product is Clorox Regular Bleach. Clorox challenged several advertising claims, including:<ul><li>Bleach is “scary.”</li><li>“We read the care labels on thousands of white garments and we were surprised they had this warning symbol which means do not use chlorine bleach.”</li><li>“Get the tough stains out without the worry of chlorine bleach.”</li><li>“Do not use Chlorine bleach.”</li><li>“Try OxiClean White Revive. The way clothes love to be whitened.”</li></ul>Advertisements at Issue. Two television commercials were at issue in the NAD challenge. The first is the “Test Lab” commercial, in which an announcer in a white lab coat in the “OxiClean White Revive Stain Remover Laundry Lab” states, “We read the care labels on thousands of white garments” and “were surprised they had this warning symbol, which means do not use chlorine bleach.” A large amount of white clothes fall on the floor from the ceiling into a pile. The announcer then says that OxiClean White Revive is the clear choice, and concludes: “Get the tough stains out without the worry of chlorine bleach.”The second challenged advertisement, the “Scary Bleach” commercial, begins by asking “Why is bleach so scary to clothes?” It shows a white shirt clutching the back of its owner. The commercial then states, “It’s right on the tag, don’t use chlorine bleach.” It then concludes, “Try OxiClean White Revive. The way clothes love to be whitened.”Clorox argued that the message conveyed by these commercials is that chlorine bleach is both dangerous and not efficacious. NAD’s Decision. NAD agreed with Clorox, and found that if Church & Dwight’s advertising conveys that bleach is “damaging or scary to white garments,” it must have a reasonable basis for the claims based on reliable testing demonstrating that chlorine bleach is damaging to the kinds of white garments depicted in the advertising. Since Church & Dwight did not have this evidence, NAD recommended that Church & Dwight discontinue the “Scary Bleach” commercial. NAD further recommended that Church & Dwight modify its “Test Lab” commercial to remove words like “worry” and “warning” when referring to the care labels on garments and to avoid conveying a message that chlorine bleach is damaging to white garments.