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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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

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A California federal court recently denied a motion to certify a class of Kohl’s customers allegedly misled by false advertising, finding that plaintiff Wendy Chowning’s claim was a copycat of an earlier-filed case, Russell, et al. v. Kohl’s Department Stores, Inc., 5:15-cv-01143 (C.D. Cal., filed June 11, 2015). Chowning v. Kohl’s Department Stores, Inc., Case No. 2:15-cv-08673 (C.D. Cal. April 1, 2016). Judge R. Gary Klausner of the Central District of California, presiding over both actions, initially ruled that the cases were not duplicative because the Chowning plaintiff sought injunctive relief and restitution, while the Russell class was certified for injunctive relief only.  However, after Kohl’s defeated the Chowning plaintiff’s restitution claims at summary judgment, the Court ruled that Chowning no longer differed from Russell, and dismissed the suit.Same Claims, Different Suits.  The Chowning and Russell plaintiffs presented nearly identical claims, only weeks apart. On June 11, 2015, the Russell plaintiffs filed their putative class action, alleging that Kohl’s comparative-pricing sales tags were a form of false advertising under California’s False Advertising Law (FAL) and Unfair Competition Law (UCL). The Russell plaintiffs claimed that Kohl’s exclusive-brand items displayed two price tags, (1) a “sale” price tag, and (2) a significantly higher “original” price tag, but that the items were never actually sold at the higher “original” price advertised. Instead, plaintiffs alleged, Kohl’s simultaneously displayed both tags to deceive plaintiffs and putative class members into thinking that the “original” price was the true price of the item, and induce them to purchase products at the purported “sale” price.The next month, on July 21, 2015, Wendy Chowning filed suit in the same court, alleging the same claims against Kohl’s under the FAL, UCL, and Consumer Legal Remedies Act (CLRA), and also seeking monetary restitution and injunctive relief.Chowning Initially Survives by Seeking Monetary Restitution.  Given the substantial overlap between the two cases, and Russell’s status as the first-filed case, Judge Klausner issued an order in the Chowning action to show cause why it should not be dismissed as duplicative. He declined to the dismiss the action, however, finding that Chowning’s relief sought—restitution in addition to injunctive relief—was sufficient to distinguish the case from Russell.Though the Russell plaintiffs initially had also sought restitution, Judge Klausner certified their class only as to injunctive relief, ruling that plaintiffs failed to meet their burden to present a viable damages model. Russell, et al. v. Kohl’s Department Stores, Inc., 5:15-cv-01143 (C.D. Cal., Dec. 4, 2015).Court Rejects Chowning’s Restitution Claims, Denies Class Certification, and Dismisses the Case.  Chowning’s distinguishing factor soon disappeared, however, when on March 15, 2016, Judge Klausner granted Kohl’s motion for partial summary judgment on the issue of restitution, finding that plaintiff’s proposed damages models did not provide a viable measure of restitution. According to the Court, even if Kohl’s did misrepresent the “original” price of an item, Kohl’s is not required to pay restitution as long as the retail value of the item is higher than the price charged. Chowning, et al. v. Kohl’s Department Stores, Inc., 2016 WL 1072129, at *12 (C.D. Cal. Mar. 15, 2016).In light of this ruling, Judge Klausner found that Chowning was no longer meaningfully different from Russell. Thus, on April 1, 2016, Judge Klausner denied the Chowning plaintiff’s motion for class certification, finding that “the same facts, legal arguments, evidence, and remedies are implicated in both [cases].” The putative Chowning class would therefore be adequately represented as members of the injunctive relief class certified in the Russell action. The court dismissed the case.Takeaway.Chowning is helpful to defendants fighting copycat actions on identical or similar issues. It demonstrates that, where both the underlying facts and requested remedies in two cases are the same, the first-filed case will win the day.

Been There, Done That: Kohl’s Wins Dismissal of Copycat False Advertising Class Action

A California federal court recently denied a motion to certify a class of Kohl’s customers allegedly misled by false advertising, finding that plaintiff Wendy C

Been There, Done That: Kohl’s Wins Dismissal of Copycat False Advertising Class Action

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 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

The Rutter Group’s Bus. & Prof. C. § 17200 Practice 2016 update is now available. MoFo’s own William Stern is the author of <a href="http://www.ruttergroup.com/index.cfm?p=200&pg=31" target="_blank">The Rutter Group’s treatise</a>, which covers plaintiff and defense representation under California’s unfair competition and false advertising laws as well as explaining substantive rights and remedies and applicable procedures. It also covers claims under the Consumer Legal Remedies Act.

Morrison & Foerster Attorney William Stern Releases 2016 Update to The Rutter Group’s Bus. & Prof. C. § 17200 Practice

The Rutter Group’s Bus. & Prof. C. § 17200 Practice 2016 update is now available. MoFo’s own William Stern is the author of The Rutter Group’s treatise, which c

Morrison & Foerster Attorney William Stern Releases 2016 Update to The Rutter Group’s Bus. & Prof. C. § 17200 Practice

A California federal district court recently denied a plaintiff’s second attempt to certify a class of Yakult consumers allegedly misled by Yakult’s packaging and advertising claims touting the health benefits of its yogurt, finding that the plaintiff’s attempt to “manufacture” standing once again fell short.  Torrent v. Yakult U.S.A., Inc. Case No. 8:15-cv-00124-CJC-JCG (C.D. Cal. March 8, 2016).Background.  <a href="http://classdismissed.mofo.com/food-misbranding/stand-down-court-rejects-yakult-yogurt-false-advertising-class-for-lack-of-standing/">As we previously reported</a>, Central District of California Judge Cormac J. Carney denied plaintiff Nicolas Torrent’s original motion for class certification, ruling that plaintiff lacked Article III standing to seek injunctive relief because he failed to allege he would purchase Yakult yogurts again, and therefore could not show sufficient likelihood of future harm.  Torrent v. Yakult U.S.A., Inc. Case No. 8:15-cv-00124-CJC-JCG (C.D. Cal. Jan. 5, 2016).  On March 8, 2016, Judge Carney again rejected the plaintiff’s motion for class certification, ruling that his newly alleged intent to buy Yakult in the future was nothing more than a barely disguised attempt to manufacture standing.  Torrent v. Yakult U.S.A., Inc. Case No. 8:15-cv-00124-CJC-JCG (C.D. Cal. March 7, 2016).Takeaway.  Courts in the Ninth Circuit have reached inconsistent results regarding what a plaintiff must plead to demonstrate standing to sue for injunctive relief.  Some, like the Yakult court, have held that a plaintiff who does not intend to purchase the challenged product again cannot suffer future harm and, as a result, lacks standing to pursue injunctive relief.  See, e.g., Garrison v. Whole Foods Mkt. Grp., Inc., No. 13-CV-05222-VC, 2014 WL 2451290, at *5 (N.D. Cal. June 2, 2014).  Others have held that a misbranding plaintiff lacks standing because he or she cannot be duped by the same advertisement again.  See, e.g.,Rahman v. Mott’s LLP, No. CV 13-3482-SI, 2014 WL 5282106, at *9 (N.D. Cal. Oct. 15, 2014).  Some courts, however, have expressed the concern that false advertising might go unchallenged and have rejected both positions and sustained standing.  See, e.g., Henderson v. Gruma Corp., No. CV 10-04173-AHM-AJWX, 2011 WL 1362188, at *7 (C.D. Cal. Apr. 11, 2011).Courts are increasingly siding with Judge Carney in Yakult, finding that lack of intent to purchase precludes standing.  Judge Carney’s current decision confirms that a plaintiff cannot avoid this result by simply amending the complaint to allege that he or she intends to purchase the challenged product; standing to sue cannot be manufactured.

Class Cert Denial Redux: Plaintiff’s “Manufactured” Standing Falls Short in Yakult Yogurt Action

A California federal district court recently denied a plaintiff’s second attempt to certify a class of Yakult consumers allegedly misled by Yakult’s packaging a

Class Cert Denial Redux: Plaintiff’s “Manufactured” Standing Falls Short in Yakult Yogurt Action

There has been much recent discussion of the primary jurisdiction doctrine, as well as stay motions based on the doctrine, related to FDA’s review of its evaporated cane juice (ECJ) draft guidance. Now, in its recent memorandum disposition in Kane v. Chobani, LLC, No. 14-15670 (“Order”), the Ninth Circuit has entered the “primary jurisdiction” debate, coming down on the side of defendants seeking stays. But, given the panel’s limited analysis, the full import of Kane is unclear.Judge Koh Rejects Plaintiffs’ Alleged “Reliance” Below. The plaintiffs in Kane argued that that Chobani’s yogurt labelling was false and misleading because the yogurts contain ECJ and include “all natural” claims. After giving plaintiffs three chances to meet pleading requirements to show standing, Northern District of California Judge Lucy Koh ultimately held that plaintiffs failed to plead reliance necessary for standing with plausibility or particularity.Specifically, Judge Koh rejected plaintiffs “illegal product theory”—e.g. plaintiffs’ claim that they need not prove reliance for claims under the UCL’s “unlawful” prong. Like all courts that have confronted similar arguments, Judge Koh held that because plaintiffs’ entire complaint sounded in fraud, they therefore must allege reliance for all of their claims, and do so with particularity. Kane v. Chobani, Inc., 973 F. Supp. 2d 1120, 1131 (N.D. Cal. 2014).Judge Koh then found that plaintiffs failed to adequately plead reliance for either their ECJ or “all natural” claims. As for ECJ, Judge Koh found it implausible that plaintiffs did not know that ECJ was not a sweetener, as allegations in their complaint undermined their claims.  Id. at 1134. As for “all natural,” the court held that plaintiffs failed to provide sufficient allegations describing why challenged ingredients were not natural, as required to demonstrate they relied on the term and were deceived.  Id. at 1137. Because plaintiffs had tried—and failed—to meet these pleading requirements three times, Judge Koh concluded that amendment would be futile.  She accordingly dismissed the case with prejudice.  Id. at 1139.The Ninth Circuit Pivots to Primary Jurisdiction. The Ninth Circuit did not address the standing or reliance requirements in Kane.  Instead, its unpublished memorandum opinion focused solely on primary jurisdiction. Citing to its recent decision in Astiana v. Hain, the panel held that:The delineation of the scope and permissible usage of the terms ‘natural’ and ‘evaporated cane juice’ in connection with food products ‘implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch.’Order at 2 (citations omitted). The panel noted that FDA is currently addressing both issues:  FDA issued a notice requesting comments regarding the term “natural” in November 2015, and confirmed in a letter to Northern District Court of California Judge Chen that it expected to finalize its ECJ guidance by the end of 2016. Id. at 3. Given FDA’s ongoing proceedings regarding these issues, the Ninth Circuit held that the primary jurisdiction applied. The panel vacated and remanded, instructing the district court to stay the action pending resolution of the FDA’s “natural” and “evaporated cane juice” proceedings.Unanswered Questions. The Ninth Circuit’s affirmation of primary jurisdiction is helpful. But it leaves many questions unanswered.  Is the “illegal product theory” a viable argument? Were plaintiffs’ bare bones allegations sufficient to plead reliance? Kane does not provide the definitive answers on these arguments. But more Ninth Circuit misbranding arguments are up ahead. Stay tuned.

Ninth Circuit Revives Chobani Yogurt Action, But Puts Claims on Ice and Leaves Questions Unanswered

There has been much recent discussion of the primary jurisdiction doctrine, as well as stay motions based on the doctrine, related to FDA’s review of its evapor

Ninth Circuit Revives Chobani Yogurt Action, But Puts Claims on Ice and Leaves Questions Unanswered

On February 12, 2016, the Ninth Circuit affirmed the district court’s decision barring the California Attorney General’s efforts to enforce nonfunctional slack fill provisions against Del Real LLC, a producer of Mexican heat-and-serve meat and poultry products.  Del Real LLC v. Kamala D. Harris et al., No. 13-16893.  The district court had issued a permanent injunction barring the AG’s enforcement on the basis that the claims were preempted by the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA).   Del Real LLC v. Kamala D. Harris, 966 F. Supp. 2d 1047 (E.D. Cal. 2013).The Ninth Circuit affirmed the preemption ruling, finding that California’s nonfunctional slack fill provisions are in “in addition to, or different than” the federal statutes’ general prohibitions against containers “filled as to be misleading.”  The court articulated two reasons why it would be impermissible to allow the California provisions to be applied to meat and poultry products: (1) the legislative history of the FMIA and PPIA shows a clear intent to create a uniform national labeling standard, counseling against allowing the states to develop variant standards; and (2) Congress intended to allow meat and poultry packaging to be subject to less specific regulation than other types of products.  The court reasoned that both of these intentions suggest it is unlikely that Congress intended for the states to be allowed to develop and apply more specific standards to slack fill for meat and poultry products.The court noted, however, that nothing in its decision should be read to prevent California from addressing misleading packaging of meat and poultry products in accordance with its concurrent authority under the FMIA and PPIA.

Ninth Circuit Affirms Bar on California AG’s Efforts to Enforce Slack Fill Provisions Against Del Real in Meat and Poultry Case

On February 12, 2016, the Ninth Circuit affirmed the district court’s decision barring the California Attorney General’s efforts to enforce nonfunctional slack 

Ninth Circuit Affirms Bar on California AG’s Efforts to Enforce Slack Fill Provisions Against Del Real in Meat and Poultry Case

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.

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NAD Recommends Church & Dwight Discontinue OxiClean “Scary Bleach” Advertising Claims

Full Disclosure: New Labeling for Cleaning Products

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On January 29, 2016, NAD recommended that Church & Dwight, the maker of OxiClean White Revive, modify or discontinue various advertising claims conveying the me

NAD Recommends Church & Dwight Discontinue OxiClean “Scary Bleach”  Advertising Claims