Advertising & Marketing

An oft-litigated issue in false-advertising class actions is whether a plaintiff can show that each class member relied on the challenged statement when they made their purchasing decision.  The Eighth Circuit recently offered an example of how this issue can pose a significant roadblock to class certification in In re…

Continue Reading Eighth Circuit Ices False Labeling Class Action on Predominance Grounds

A Washington State Supreme Court decision last spring that construed that state’s Commercial Electronic Mail Act (“CEMA”) to broadly prohibit any misleading information in retailers’ email subject lines has opened the floodgates to similar state spam claims. In the past six months, there have been eight putative class action complaints alleging that retailers’ misleading email subject lines violate CEMA, and more alleging similar claims under other state spam laws. Businesses face heightened exposure to liability for marketing practices that seek to convey a sense of urgency with respect to promotional timelines. This spate of litigation raises important questions about the scope and enforceability of state anti-spam laws, including whether such claims are preempted under the federal Controlling the Assault of Non–Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”).  Continue Reading Recent Class Actions Under State Anti-Spam Laws Target Retail Email Marketing Practices and Raise Questions about CAN-SPAM Act Preemption

In a recent decision, the Northern District of Illinois dismissed a deceptive advertising class action filed against Mondeléz International, Inc. (“Mondeléz”).  Salguero v. Mondeléz Int’l, Inc., 2025 WL 3004534, at *6 (N.D. Ill. Oct. 27, 2025).  Mondeléz, a snack food company, manufactured and distributed energy snack bars (“Zbars”) while labeling the packaging as “climate neutral certified.”  Id.  The plaintiff, allegedly purchasing Zbars under the impression that the label meant Zbars did not cause pollution, initiated a class action suit, bringing claims under California’s consumer protection statute, breach of express warranty, and unjust enrichment.  Id.Continue Reading Illinois Federal Court Dismisses Deceptive Advertising Class Action Against Snack Food Company

On Thursday March 13, 2025, New York Attorney General Letitia James announced proposed legislation to expand New York’s consumer protection law: the Fostering Affordability and Integrity through Reasonable (FAIR) Business Practices Act (“the Act”). The Act would update and expand New York’s current consumer protection law, Sections 349 and 350 of the New York General Business Law (“GBL”), to encompass a broader range of practices and claims.

The current versions of Sections 349 and 350 make unlawful certain deceptive business acts and practices and false advertising.  The Act would amend Section 349 to cover not only “deceptive” business acts and practices, but also conduct that may fall under vague definitions of “unfair” and “abusive” acts and practices.  The Act would further expand Section 349 by making it applicable “regardless of whether or not that act or practice is consumer-oriented [or] has a public impact or impact on consumers ….” The Act would also increase statutory damages to $1,000 and grant standing to organizations and third parties to the fullest extent otherwise permitted by law. However, the Act would also create affirmative defenses that limit plaintiffs to individuals and small entities, and excludes acts or practices that could be addressed by federal securities or intellectual property laws or that involve “high-value experienced commercial transaction[s]” directed exclusively to the parties to such transactions.Continue Reading New York Proposes New Consumer Protection Law

In Bates v. Abbott Laboratories, the Second Circuit affirmed dismissal of a consumer class action challenging the labeling of Ensure shakes and drinks as materially misleading.  2025 WL 65668, at *1–2 (2d Cir. Jan. 10, 2025). Continue Reading Second Circuit Affirms Dismissal of Consumer Class Action Challenging Nutrition Shakes and Drinks As Misleading

On December 17th, the Federal Trade Commission (“FTC”) announced its final rule intended to require the display of total price for tickets to live events and for short-term lodging.  

The rule will require businesses that offer, display, or advertise a price for live-events tickets and short-term lodging to clearly and conspicuously disclose a total price inclusive of all mandatory fees (excluding shipping and government fees).  And, before checkout, this total price must be displayed more prominently than other pricing information (such as itemized fees or surcharges).   

The rule also prohibits businesses from misrepresenting any fee or charge associated with tickets and lodging—including the fee’s nature, purpose, amount, or refundability.Continue Reading Hidden No More: FTC Finalizes Rule Restricting Hidden Fees for Live-Event Tickets and Short-Term Lodging

A court in the Northern District of Illinois recently denied a motion to dismiss a lawsuit alleging that the alleged inclusion of artificial citric acid in a product rendered the “No Artificial Flavors, Preservatives, or Dyes” representation on the front label false and/or misleading.  Hayes v. Kraft Heinz Co., 2024 WL 4766319 (N.D. Ill. Nov. 13, 2024). Continue Reading Illinois Federal Court Permits Citric Acid Case To Proceed

Last year, in an important decision for companies that routinely face false advertising claims, the Ninth Circuit held that when “a front label is ambiguous, the ambiguity can be resolved by reference to the back label.”  McGinity v. Procter & Gamble Co., 69 F.4th 1093, 1099 (9th Cir. 2023).  The Ninth Circuit recently further clarified when reference to the back label is appropriate.  See Whiteside v. Kimberly Clark Corp., 108 F.4th 771 (9th Cir. 2024).Continue Reading Ninth Circuit Further Refines Rule on When Back Labels Should Be Considered in False Advertising Claims

In the latest false advertising decision regarding malic acid (see prior Inside Class Actions coverage here, here, and here), the Southern District of California dismissed with prejudice a plaintiff’s claim that defendant falsely advertised that its licorice was “naturally flavored” because testing allegedly showed that the product…

Continue Reading California Federal Court Dismisses False Advertising Suit Based on Malic Acid