Although the landscape of the Federal Food Drug and Cosmetic Act (FDCA) preemption of private Surgeon General class action claims continues to shift under our feet in California, first with POM and recently with this case, the Sixth Circuit has recently made clear that consumer protection claims that would not have existed “but for” the… Read More
Monthly Archives: February 2013
Repeat Customers Insufficient to Defeat Class Certification in Case Involving Joint Supplement Beverage
Posted in Class Certification, False Advertising ClaimsWe reported recently on a decision from the Central District of California in which the court in part denied class certification in a case against Neutrogena because of “repeat customers” of Neutrogena’s products, thus giving rise to individualized questions over whether the product worked as advertised. Last week, another court in the Central District rejected a… Read More
Preemption Still Has Teeth: The FDCA Keeps California False Advertising Claims at Bay in Pom Wonderful Suit
Posted in False Advertising Claims, PreemptionAs we have noted in prior posts (FDCA, POM, preemption), the Food, Drug, and Cosmetic Act (“FDCA”) can provide a powerful tool to food companies that are hit with claims about their labeling. Yesterday, Judge Otero in the Central District of California confirmed that preemption under the FDCA has teeth, finding that the FDCA preempts… Read More
Repeat Customers Drive Denial of Class Certification in False Advertising Wrinkle Cream Suit
Posted in False Advertising ClaimsNeutrogena recently defeated class certification in a case alleging violations of California’s false advertising laws and express warranty claims against the company in connection with the advertisement and sale of its wrinkle cream products. Plaintiff alleged that Neutrogena falsely advertised its products as “clinically proven” to repair wrinkles and reduce signs of aging. In addition to… Read More
Pfizer’s Motion to Dismiss Successful in Class Action Over Its Probiotic Advertising
Posted in False Advertising Claims, Pleading StandardsIt is no surprise to anyone defending against false advertising claims that Rules 8 and 9(b) of the Federal Rules of Civil Procedure are powerful tools to force plaintiffs to articulate with specificity their theory of why particular advertising is indeed false. In the past few years, however, a growing number of plaintiffs in food… Read More