Advertising & Marketing

The Southern District Court of New York recently denied a motion to dismiss a false advertising lawsuit against a water bottle company, holding that a reasonable consumer could be misled by the company’s “carbon neutral” labeling.Continue Reading New York Federal Court Denies Motion to Dismiss False Advertising Suit Based on “Carbon Neutral” Claims

This blog recently covered a decision from the Northern District of California denying a defendant’s motion for summary judgment on a plaintiff’s “greenwashing” claims, which asserted that defendant’s “non-toxic” and “Earth-friendly” labels were false and misleading.  See Bush v. Rust-Oleum Corp., 2024 WL 308263 (N.D. Cal. Jan. 26, 2024).  Now, the same court has granted class certification on those claims, demonstrating that not only can these claims be difficult to defeat before trial, but it can also be difficult to prevent certification on those claims as well.Continue Reading “Greenwashing” Claims Certified For Class Treatment

A federal judge in the Western District of Texas recently sided with a growing trend of rulings adopting a narrow reading of the Video Privacy Protection Act (VPPA) in dismissing a putative class action against the operators of a Texas Longhorns email newsletter.  The case involved tracking pixels embedded in videos that were linked in the newsletter but posted to public websites.  The court held that because the plaintiffs had not made a durable commitment through signing up for the newsletter, and because videos were not embedded in the newsletter, plaintiffs failed to meet the definition of “consumer” as defined in the VPPA.Continue Reading Judge Highlights Trend of Narrow Reading of VPPA In Class Action Dismissal

As companies have increased efforts to represent their products as environmentally friendly, “greenwashing” lawsuits—which target companies (often under consumer protection statutes) based on allegations of false or misleading statements regarding the environmental impact of their products or practices—have also increased. A recent order from the district court in the Northern District of California illustrates the difficulty in attempting to defeat these claims before trial if a strong evidentiary record has not been developed.Continue Reading N.D. Cal. Judge Allows “Greenwashing” Claims to Proceed to Trial

A California district court recently dismissed two lawsuits that asserted that the marketing of certain tampons was misleading due to the alleged presence of per and polyfluoroalkyl substances (“PFAS”), holding that plaintiffs could not rely on conclusory assertions regarding testing that allegedly detected PFAS in the products.Continue Reading Court Dismisses Lawsuits Alleging Presence of PFAS in Tampon Products

The Ninth Circuit recently issued a key Prop 65 decision that could have broader implications for businesses subjected to its regulatory regime. 

Enacted via a ballot initiative, Prop 65 requires a company to warn consumers when one of its products contains a chemical known to the state of California to be carcinogenic or harmful to reproductive health.  In 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) placed glyphosate on its list of chemicals requiring a warning after the International Agency for Research on Cancer (IARC) concluded that the herbicide was “probably carcinogenic.”  Shortly after, a group of agricultural and business groups sued to enjoin California from requiring glyphosate warnings, arguing that the requirement violated the First Amendment.  The Ninth Circuit agreed.  See Nat’l Ass’n of Wheat Growers v. Bonta,– F.4th–, 2023 WL 7314307, at *2 (9th Cir. Nov. 7, 2023).Continue Reading Citing First Amendment Issues, Ninth Circuit Kills Prop 65 Glyphosate Warning Requirement

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.

Continue Reading Second Circuit Revives Mislabeling Claims Over “Reef Friendly*” Sunscreen

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.Continue Reading Third Circuit Flirts with Narrow View of Warranties Based on Third-Party Certification

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