The Second Circuit recently revived a plaintiff’s false advertising claims under New York’s General Business Law (“GBL”), concluding that whether the particular statements at issue were non-actionable puffery requires a fact-intensive inquiry not suitable for resolution on a motion to dismiss.  MacNaughton v. Young Living Essential Oils, LC, No. 22-0344, 2023 WL 3185045 (2d Cir. May 2, 2023).

The plaintiff, on behalf of a putative class of consumers, challenged as false and misleading the defendant’s claims that its essential oil products are “therapeutic-grade” and confer certain health benefits.  The district court dismissed the GBL claims, reasoning the statements at issue are non-actionable puffery.

The Second Circuit reversed, observing that the district court did not have the benefit of its recent decision in Int’l Code Council, Inc. v. UpCodes Inc., which established a critical distinction between two forms of puffery.  43 F.4th 46 (2d Cir. 2022).  As explained in that opinion, the first form of puffery, “subjective statements of opinion which cannot be proven false,” is non-actionable as a matter of law.  The second form, objective statements that can be proven true or false but are “so exaggerated that no reasonable buyer would be justified in relying on them,” generally requires a fact-intensive inquiry to determine if the challenged statement is puffery, unless it is “so patently hyperbolic that any allegations that it misled consumers are facially implausible.”  For example, a statement representing that a particular bubblegum allows a chewer to “blow a bubble as big as the moon” is so patently hyperbolic that it is facially implausible a reasonable consumer could be misled, and such a claim would be subject to dismissal.  By contrast, a statement that a chewer can blow the bubblegum “as big as [their] own head” could plausibly mislead a reasonable consumer, and thus the statement can be characterized as puffery only if evidence presented at summary judgment or at trial shows that “no reasonable buyer would be justified in relying on it in navigating the marketplace.”

Applying those principles, the Second Circuit held that the representations that the essential oil products are “therapeutic-grade” and impart certain health benefits are objective statements that could be proven true or false, and are not so hyperbolic that it would be facially implausible that a reasonable consumer was misled by them.  As a result, the court concluded a fact-intensive inquiry as to how a reasonable consumer would interpret the statements was required to determine if the statements are puffery.

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Photo of Kaixin Fan Kaixin Fan

Kaixin Fan is a member of the Litigation and Investigation and the Food, Drug, and Device Practice Groups. She has advised clients in various high-stakes disputes, including clients in the food, beverage, and consumer packaged goods industries in matters implicating consumer protection statutes.

Kaixin Fan is a member of the Litigation and Investigation and the Food, Drug, and Device Practice Groups. She has advised clients in various high-stakes disputes, including clients in the food, beverage, and consumer packaged goods industries in matters implicating consumer protection statutes. Kaixin also has experience in advising clients in complex investigations and counseling life sciences clients on FDA regulatory matters.

Kaixin maintains an active pro bono practice, with experience in the areas of housing, reproductive rights, and gender-based violence.

Photo of Cort Lannin Cort Lannin

Cortlin Lannin is a litigator who defends clients in high-stakes complex matters, specializing in class action cases implicating consumer protection and competition claims. He approaches his matters with efficiency and creativity, developing thoughtful strategies to resolve cases and investigations early and on favorable…

Cortlin Lannin is a litigator who defends clients in high-stakes complex matters, specializing in class action cases implicating consumer protection and competition claims. He approaches his matters with efficiency and creativity, developing thoughtful strategies to resolve cases and investigations early and on favorable terms.

On behalf of a range of clients in the food, beverage, and consumer packaged goods industries, Cort has navigated pre-complaint disputes and defended multiple class actions implicating deceptive and false advertising practices under California’s UCL, FAL, and CLRA, and other states’ false advertising and unfair competition laws. Cort also has a depth of experience with competition matters, having represented clients in civil class action litigation, non-public governmental investigations of both the civil and criminal variety, and internal investigations. He has had a lead role in cases and investigations implicating the high tech industry, alleged “no-poach” agreements, and price-fixing and similar cartel conduct. He is also a leader in the antitrust bar and the recent chair of the Antitrust Section of the Bar Association of San Francisco.

Cort is a co-chair of Covington’s LGBT+ Affinity Group and is deeply involved in the firm’s efforts to recruit, mentor, and promote diverse attorneys, including LGBT+ attorneys.

Prior to joining Covington, Cort was a national political consultant who specialized in polling and focus group research. He leverages this research background in his litigation practice, particularly in defending consumer cases.