Consumer Products

An Illinois federal district court recently concluded that, under the Class Action Fairness Act (CAFA), the “citizenship” of a limited liability company is determined by reference to its principal place of business and state of organization. See Calchi v. TopCo Associates, LLC, 2023 WL 3863355 (N.D.Ill. June 7, 2023).

The court originally dismissed plaintiff’s

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).Continue Reading Trio of Cases Supports Preemption Arguments for False Advertising Suits Challenging “Structure/Function 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).Continue Reading Ninth Circuit Confirms Courts Should Consider Whether Back Panel Disclosures Help Clarify Ambiguous Front-of-Pack Claims

A U.S. district court recently granted in part and denied in part the New York Times’s motion to dismiss claims that its subscription renewal terms violated North Carolina’s little-used Automatic Renewal Statute.  The plaintiff, on behalf of a putative class, claimed that the Times subscription process failed to adequately disclose the automatic renewal and cancellation options as required by the statute.  The court dismissed several of the plaintiff’s claims, but the case was allowed to proceed on allegations that the methodology for canceling was not clearly and conspicuously disclosed, and that the terms of subscription price increases were not provided in the format required by the statute.Continue Reading In a Case of First Impression Under North Carolina’s Automatic Renewal Statute, Judge Dismisses Some Claims but Allows Others to Proceed

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.Continue Reading “Money-Back Guarantee” Deprived Plaintiff of Standing to Bring a False Labeling Class Action

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).Continue Reading Second Circuit Reiterates When Puffery Claims Can Be Dismissed at the Pleadings Stage

In a decision that boosts defendants’ chances of defeating mislabeling claims at the pleading stage, a Ninth Circuit panel held that that the Food Drug and Cosmetic Act (“FDCA”) expressly preempted plaintiffs’ claims.  See Pardini et al. v. Unilever United States, Inc., No. 21-16806 (9th Cir. Apr. 18, 2023). Continue Reading Challenge to “I Can’t Believe It’s Not Butter! Spray” Labeling Is Preempted, Ninth Circuit Says

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.”Continue Reading New York Court Permits “Maximum Strength” False Advertising Case to Proceed

In products and class action cases involving exposure to purportedly hazardous materials, plaintiffs often have trouble demonstrating concrete physical injuries, and in particular concrete physical injuries that would be common across a class.  To avoid dismissal and bolster class certification, those plaintiffs sometimes bring so-called “medical monitoring” claims, which seek recovery for the present-day costs

The California Attorney General has joined the fray in Souter v. Edgewell, an otherwise little‑watched putative class action pending in the Ninth Circuit over allegedly misleading label claims about the efficacy and safety of the defendant’s hand wipes.  The Attorney General is urging the Ninth Circuit to make it far more difficult for defendants