The latest developments and trends affecting class actions
The Second Circuit recently revived a putative class action asserting false advertising and breach-of-warranty claims over “Reef Friendly*” sunscreen, providing another cautionary tale of how claims involving potentially ambiguous marketing language can survive a motion to dismiss even when clarifying language appears elsewhere on the product package.
In Richardson v. Edgewell, plaintiff challenged the…
We are seeing a growing number of class actions alleging consumer harms from corporate carbon offset policies. On October 13, a California federal court threw out such a case (albeit with leave to amend) against e-commerce site Etsy.
The lawsuit, Blackburn v. Etsy, Inc., No. 2:23-cv-05711 (C.D. Cal. 2023), stemmed from a number of carbon offset promises Etsy has made since 2019—that the company engages in “100% offsetting [of] all carbon emissions from shipping[,]” that it was “the first major online shopping destination to offset 100% of carbon emissions generated by shipping[,]” and that its “goal [is] to run a carbon neutral business[.]” Dkt. No. 20 at 1. Plaintiffs alleged that the carbon offset promises were false “due to endemic methodological errors and fraudulent accounting on behalf of offset vendors.” Id. Plaintiffs claimed that Etsy’s false promises caused them harm because they paid more for products on the site than they otherwise would have under the mistaken belief that Etsy’s shipments were carbon neutral. …
Continue Reading California Federal Court Throws Out Carbon Offset Class Action Against Etsy
False labeling class actions are often mired in debates about how a reasonable consumer would understand a product’s label. In many cases, the fight is centered on what third-party certification marks warrant to reasonable consumers. In Dzielak v. Whirlpool Corporation, — F.4th —, No. 20-2551, 2023 WL 6331102 (3rd Cir. Sept. 29, 2023), the Third Circuit articulated powerful arguments against finding that these marks create broad warranties.…
Over the last several years, food and drug manufacturers have litigated countless class action lawsuits claiming that their products are misleadingly advertised. Many of these lawsuits claim that a product’s packaging is misleading because it allegedly violates FDA labeling rules. Last week, in DiCroce v. McNeil Nutritionals, LLC, — F.4th —, No. 22-1910, 2023 WL 6056144 (1st Cir. Sept. 18, 2023), the First Circuit found that these claims are impliedly preempted by the Federal Food, Drug, and Cosmetic Act (“FDCA”). …
Continue Reading First Circuit Finds “Fraud on the FDA” Claims Preempted by the FDCA
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.…
Recently, there has been a proliferation of putative class actions targeting allegedly misleading statements (or omissions) on the FDA-approved labels for over-the-counter (“OTC”) drugs. Last year, we explained how these types of claims are vulnerable to a strong federal preemption defense. In short, because the Federal Food, Drug, and Cosmetic Act (“FDCA”) explicitly forbids states from imposing OTC labeling requirements that are “different from,” “in addition to,” or “otherwise not identical” with those provided under federal law, 21 U.S.C. § 379r(a), state-law claims that directly challenge or conflict with the FDA’s decision-making for OTC drug labels are expressly preempted.…
Continue Reading Another Win for Preemption in Over-The-Counter Drug Labeling Case
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).…
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).…
In recent years, sellers of consumer products have faced countless class action lawsuits alleging that their products are misleadingly advertised. Many motions to dismiss often turn on whether the product’s advertising is misleading to a reasonable consumer. But in Valiente v. Publix Super Markets, Inc., 2023 U.S. Dist. LEXIS 91089 (S.D. Fla. May 24, 2023), the court took a different tack, dismissing a false advertising claim on Article III standing grounds because the defendant’s “money-back guarantee” effectively mooted the plaintiff’s claim for monetary damages.…
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).…
