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Category Archives: False Advertising Claims

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FDCA Express Preemption Victory in Benecol Misbranding Class Action

By Maya Ingram and Claudia Maria Vetesi on Posted in False Advertising Claims, Misbranding, Preemption

A recent Third Circuit case brings good news for defendants making express preemption arguments under the Food, Drug and Cosmetic Act (FDCA) in misbranding class actions. Last week, the court affirmed the dismissal of a putative class action holding that Johnson & Johnson’s representations of the trans fat content and cholesterol-lowering capabilities of its Benecol®… Read More

“All Natural” Suit Against AriZona Iced Tea: Class Decertified and Suit Tossed

By Claudia Maria Vetesi and Rebekah Kaufman on Posted in False Advertising Claims, Misbranding

In the world of food misbranding class actions, few cases have yet made it to the merits stage.  Companies defending against these claims should accordingly take note of AriZona Iced Tea’s recent win in Ries v. AriZona Beverages USA LLC, No. 3:10-cv-01139-RS, Docket Entry 195 (N.D. Cal. Mar. 28, 2013). Challenging HFCS and Citric Acid… Read More

Abbott Avoids Shake-Up: False Ad Suit over Ensure Dismissed

By Rebekah Kaufman and Gabriela Kipnis on Posted in False Advertising Claims

Yet another court has tasked plaintiffs at the pleading stage with providing scientific support for false advertising claims that are based on a product’s alleged failure to deliver its promised health benefits. See our prior related post here. On Friday, a federal judge in California dismissed a putative class action against Abbott Laboratories on the… Read More

FDA Will Finally Weigh In on “Gluten-Free” Labeling Requirements

By Natalie Naugle on Posted in False Advertising Claims, Misbranding

Over the past several years, consumers have no doubt seen an increase in “gluten-free” representations on food labels and restaurant menus. But what does “gluten-free” really mean and why is it important? After years of research and public comment, the U.S. Food and Drug Administration will finally weigh in on the issue. Its proposed “gluten-free” label requirements are… Read More

Repeat Customers Insufficient to Defeat Class Certification in Case Involving Joint Supplement Beverage

By Rebekah Kaufman on Posted in Class Certification, False Advertising Claims

We 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

By Alexis Amezcua on Posted in False Advertising Claims, Preemption

As 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

By Natalie Naugle on Posted in False Advertising Claims

Neutrogena 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

By Rebekah Kaufman on Posted in False Advertising Claims, Pleading Standards

It 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

“All Natural” False Advertising Class Certified in Arizona Iced Tea Case

By Rebekah Kaufman and Alexis Amezcua on Posted in False Advertising Claims

A federal judge in the Northern District of California has certified a California class of Arizona Iced Tea purchasers.  What is striking is that the court only certified a class for declaratory and injunctive relief and denied plaintiffs’ bid to certify a class seeking monetary restitution based on the purchase price.  Ries, et al. v…. Read More

General Mills Points to Ingredient List in Defense of “100% Natural” Claims

By Rebekah Kaufman on Posted in False Advertising Claims, Organic, Standing

General Mills recently filed a motion to dismiss a putative class action accusing the company of falsely advertising its popular Nature Valley granola products as “100% natural.”  Chin et al. v. General Mills, Inc., Case No. 12-cv-2150-MJD-TML (D. Minn.).  The crux of plaintiffs’ claims is that the granola is not “100% natural” because it contains… Read More

Nationwide Class Certified in Case Against Pom under California’s Consumer Laws

By Rebekah Kaufman on Posted in False Advertising Claims

Yes, you read that right.  A federal judge in California has certified a nationwide class under California’s false advertising and unfair competition laws.  You may have thought that possibility was largely a thing of the past after Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012)—at least in the Ninth Circuit.  Au… Read More

Class Action Settlement Regarding Alleged Mislabeling of “Organic” Milk

By Alexis Amezcua on Posted in False Advertising Claims, Misbranding

A Missouri federal judge has preliminarily approved a class action settlement in a multidistrict litigation involving the alleged mislabeling of organic milk. In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., No. 4:08-md-1907-ERW, D.E. 321 (E.D. Mo. Sept. 14, 2012). Piggybacking on a 2007 report issued by the U.S. Department of Agriculture… Read More

Food Binge: Big Tobacco Lawyers Set Their Sights on the Food Industry

By Claudia Maria Vetesi on Posted in False Advertising Claims, Misbranding

As the New York Times recently reported a group of former tobacco lawyers looking for a shakedown have gone on a food binge.  Over the past four months, class counsel has filed 24 (and counting) nearly identical food “misbranding” class actions in federal court in the Northern District of California.  So many “misbranding” cases have… Read More

Are “Reasonable Consumers” Free to Ignore Ingredient Lists?

By Natalie Naugle on Posted in False Advertising Claims

Manufacturers might assume that they can avoid false advertising claims by accurately disclosing a product’s ingredients on the ingredient label.  The Ninth Circuit held otherwise in a 2008 case involving Gerber’s “Fruit Juice Snacks.”  See Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir. 2008).  Plaintiffs in Williams alleged that the product’s packaging was… Read More

Preemption and the Health Claim Class Action:
FDA to the Rescue?

By William Tarantino on Posted in False Advertising Claims, Misbranding, Preemption

In one of the very first private surgeon general class actions, plaintiffs alleged that pictures of fruits on fruit drink products conveyed to consumers that the products contain those fruit in amounts greater than the 10% fruit juice common in most fruit juice drinks.  Thankfully, the Central District of California ruled that the FDA’s precise… Read More