A pair of malic acid decisions recently issued by Judge Coleman in the Northern District Court of Illinois reaffirmed that the statements “natural flavors with other natural flavors” and “no artificial flavors” receive different treatment under state false advertising laws, at least in that district.
Trio of Cases Supports Preemption Arguments for False Advertising Suits Challenging “Structure/Function Claims”
Recent decisions from the First and Ninth Circuits may help defendants facing false advertising challenges to certain types of labeling statements known as “structure/function claims.” Three courts have held that such challenges were preempted by the Food, Drug, and Cosmetic Act (FDCA).
Ninth Circuit Confirms Courts Should Consider Whether Back Panel Disclosures Help Clarify Ambiguous Front-of-Pack Claims
The Ninth Circuit recently issued an important decision for consumer companies that routinely face false advertising litigation. Resolving an issue that had split district courts in the circuit, the panel held that when “a front label is ambiguous, the ambiguity can be resolved by reference to the back label.” McGinity v. Procter & Gamble Co.,– F.4d –, 2023 WL 3911531, at *4 (9th Cir. June 9, 2023). The court also issued a memorandum affirming the dismissal of a complaint against Icelandic Provisions on the same grounds; Covington represented the company in that matter. See Steinberg v. Icelandic Provisions, Inc., 2023 WL 3918257, at *1 (9th Cir. June 9, 2023). With these decisions, the Ninth Circuit joins the growing consensus that back labels must be considered when a challenged front label claim is ambiguous. See, e.g., Foster v. Whole Foods Mkt. Grp., Inc., 2023 WL 1766167, at *3 (E.D.N.Y. Feb. 3, 2023).
Federal Law Preempts Plaintiffs’ Challenges to the Label of a Glucosamine Dietary Supplement, Ninth Circuit Holds
The Ninth Circuit recently affirmed summary judgment in favor of a manufacturer of glucosamine dietary supplements, holding that plaintiffs’ state law claims sought to impose requirements different from those under the federal Food, Drug, and Cosmetic Act (FDCA) and were thus preempted. Hollins v. Walmart Inc., 67 F.4th 1011 (9th Cir. 2023).
Plaintiffs’ case targeted Walmart’s “Spring Valley Glucosamine Sulfate” product, later relabeled “Spring Valley Glucosamine Sulfate Potassium Chloride,” alleging that the product was mislabeled under California law because it did not actually contain glucosamine sulfate or glucosamine sulfate potassium chloride. Rather, plaintiffs alleged that the product was comprised only of glucosamine hydrochloride, which purportedly does not offer the same clinical benefits. The Ninth Circuit, in a split decision, affirmed the district court’s conclusion that plaintiffs’ claims under California law were preempted.
Second Circuit Reiterates When Puffery Claims Can Be Dismissed at the Pleadings Stage
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).
New York Court Permits “Maximum Strength” False Advertising Case to Proceed
False advertising lawsuits challenging lidocaine products that are represented to be “maximum strength” have now survived motions to dismiss in several instances. Most recently, in Gonzalez Rodriguez v. Walmart, Inc., the plaintiffs brought a putative class action alleging that Walmart’s private label Equate-brand lidocaine patches and creams are falsely labeled as “maximum strength” or “max strength.” The three challenged products are labeled as 4% lidocaine, and allegedly contain 360 milligrams of lidocaine. The plaintiffs allege that certain prescription-strength patches deliver up to a 5% dose of lidocaine, and other over-the-counter patches deliver 560 milligrams of lidocaine—200 milligrams more than Walmart’s products. The Southern District of New York concluded that plaintiffs had adequately pled claims under New York’s consumer protection statutes (GBL §§ 349 and 350), reasoning that “it is plausible that a reasonable consumer would understand ‘maximum strength’ to mean that the patch product contains the maximum amount of lidocaine available on the market for that type of product.” Gonzalez Rodriguez v. Walmart, Inc., 2023 WL 2664134, at *4 (S.D.N.Y. Mar. 28, 2023). Though Walmart argued that (1) prescription-strength patches are not proper comparators and (2) the plaintiffs used erroneous calculations regarding the amount of lidocaine in comparator products, the court rejected these arguments as “fact-intensive disputes [] not appropriate for resolution at the motion-to-dismiss stage.”
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New York Federal Court Dismisses Two False Advertising Suits Based on Malic Acid
Judge Karas in the Southern District of New York recently dismissed two lawsuits alleging that defendants’ beverage products contained synthetic malic acid that functioned as a flavoring agent, rendering the “100% natural flavors” and “natural flavor with other natural flavor” claims on the product labels false and/or misleading.
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“100% Recyclable” Labels Are Not False Just Because Not All Plastic Bottles Are Recycled
A court in the Northern District of California recently dismissed a complaint brought against several beverage companies, including Coca-Cola, on behalf of a putative class of consumers and the Sierra Club. Swartz v. Coca-Cola Co., No. 21-cv-04643-JD, 2022 U.S. Dist. LEXIS 209641 (N.D. Cal. Nov. 18, 2022). Asserting claims under California and common law, plaintiffs alleged that the “100% recyclable” representation on single-use plastic bottles supplied by defendants is false and misleading because not all plastic bottles discarded into recycling bins are processed into reusable material. Plaintiffs’ complaint cited to studies showing that recycling facilities in the U.S. lack the capacity to process most of the plastic waste generated, and not all plastic processed turns into material for reuse. Resolving defendants’ motion to dismiss, the court acknowledged that “the question of consumer deception may be a factual matter unsuitable for resolution in a motion to dismiss,” but concluded that plaintiffs here failed to meet “the initial burden of pleading factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged as informed by judicial experience and common sense.”
More Courts in N.D. Cal. Uphold Industry-Standard Method for Calculating Protein Content Claims
Courts in the Northern District of California continue to turn away lawsuits alleging that food and beverage companies must adjust protein content claims to account for protein digestibility. In Brown v. Nature’s Path Foods, Inc., 2022 WL 717816 (N.D. Cal. Mar. 10, 2022), Judge Gilliam observed that recent FDA guidance reaffirms that companies may
Consumer Survey Did Not Constitute Common Proof of Deception or Materiality
The Southern District of California recently declined to certify a class based on plaintiffs’ failure to offer class wide proof of deception and materiality. In Gross et al. v. Vilore Foods Company, Inc., plaintiffs alleged that Kern fruit juice products were deceptively labeled as “100% Natural” or made with whole fruit when the drinks in fact contained artificial ingredients. Plaintiffs brought claims under various California laws, including the UCL, CLRA, and FAL. To certify a class, plaintiffs were required to offer common proof both that the challenged representations were deceptive or misleading to a reasonable consumer; and that the challenged representations were material, meaning a reasonable person would attach importance to the representations that Kern’s fruit juice is “100% natural” or made with whole fruit. The court held that plaintiffs satisfied neither burden.
First, as to deception, the only evidence Plaintiffs cited was their expert’s report. Plaintiffs’ expert purported to assess the importance consumers placed on certain product attributes, and how claims such as “artificially flavored” affected their willingness to pay for a product. Plaintiffs’ expert concluded that consumers were willing to pay approximately 29% more for a Kern product that did not disclose its use of artificial flavors, and approximately 30% less for a product disclosing that it contained artificial flavors. The court found this evidence insufficient because consumers’ willingness to pay more or less for a product said nothing about whether the labels at issue would lead consumers to believe that the products did not contain artificial flavors, or contained only natural flavors. As a result, the court held that Plaintiffs’ expert’s opinion could not constitute common proof of deception.
Continue Reading Consumer Survey Did Not Constitute Common Proof of Deception or Materiality