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
Consumer Products
A Closer Look: The Importance of Expert Testimony for “Reasonable Consumer” Claims
Companies in the food, beverage, pharmaceutical, and other industries continue to face litigation regarding their products’ labeling, including as to whether certain representations on labels are deceptive or misleading. In the Second Circuit and elsewhere, these lawsuits tend to turn on what an objective “reasonable consumer” would understand the representation at issue to mean, and whether that “reasonable consumer” would likely be misled under the circumstances. In Bustamante v. KIND, LLC, 2024 WL 1917155 (2d Cir, May 2, 2024), the Second Circuit confirmed how important expert testimony can be to that question, and how efforts to exclude expert testimony can ultimately be the difference between winning and losing. Continue Reading A Closer Look: The Importance of Expert Testimony for “Reasonable Consumer” Claims
Court Dismisses Lawsuits Alleging Presence of PFAS in Tampon Products
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
A Closer Look: Second Circuit Steps In to Reverse Decision Refusing To Enforce “Click-Wrap” Mandatory Arbitration Agreement
On November 3, the Second Circuit reversed a lower court decision denying a motion to compel arbitration in a putative class action against Klarna. See Edmundson v. Klarna, Inc., 85 F.4th 695 (2d Cir. 2023). The decision offers guidance (and support) for companies looking to enforce similar “click-wrap” agreements with mandatory arbitration provisions.Continue Reading A Closer Look: Second Circuit Steps In to Reverse Decision Refusing To Enforce “Click-Wrap” Mandatory Arbitration Agreement
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).Continue Reading Ninth Circuit Confirms Courts Should Consider Whether Back Panel Disclosures Help Clarify Ambiguous Front-of-Pack Claims
A Closer Look: Does Purchasing a Defective or Contaminated Product Always Cause an Article III Injury?
If a tree falls in the forest but no one is around to hear it, did it make a sound? Philosophers disagree. If a product contains a contaminant but no one gets sick, did it cause an injury? Judges disagree.
In the 2000s, enterprising plaintiffs’ attorneys attempted to push the boundaries of existing tort law by arguing that plaintiffs are entitled to damages for defects even when they cause no physical injury. These so-called “no-injury” theories of liability were largely rejected by courts. E.g., Rivera v. Wyeth-Ayerst Lab’ys, 283 F.3d 315, 320–21 (5th Cir. 2002) (dismissing “no-injury products liability law suit”); Johnson v. Bankers Life & Cas. Co., 2014 WL 4494284, at *7 (W.D. Wis. Sept. 12, 2014) (recognizing that in the “consumer product context, courts routinely find lack of standing where—while a product may have been defective in the hands of others—the individual plaintiffs did not suffer the defect and, therefore, suffered no injury”).
While these cases closed the door on “no-injury” product liability claims, they left open the possibility of other “no-injury” claims, such as claims that a manufacturing defect breached a warranty or constituted fraud. E.g., Cole v. Gen. Motors Corp., 484 F.3d 717, 723 (5th Cir. 2007) (“Notably in this case, plaintiffs may bring claims under a contract theory based on the express and implied warranties they allege.”).
Whether and when “no-injury” claims are viable is a hotly debated question. As more fully discussed below, courts disagree on whether a plaintiff who has purchased a contaminated or defective product—but who has successfully used the product for its intended purpose while suffering no physical injury—can maintain a claim.Continue Reading A Closer Look: Does Purchasing a Defective or Contaminated Product Always Cause an Article III Injury?
Keurig Settles K-Cup Recycling Claims
Keurig has agreed to settle on a nationwide class basis a lawsuit alleging that the labeling of its K-Cup pods misleads consumers into believing that K-Cups are more widely recyclable than the coffee pods actually are.
The complaint, filed in 2018, alleged that Keurig marketed its products as recyclable, despite knowing that they “typically end[ed] up in landfills.” The plaintiff claimed that the packaging conveyed that consumers can “[h]ave [their] cup and recycle it, too,” by following the illustrated instructions to “PEEL,” “EMPTY,” and “RECYCLE” next to the chasing arrow recycling symbol. However, the plaintiff claimed, these labels were deceptive because K-Cups cannot be recycled due to their size, making them per se deceptive under the Green Guides, which state that “if any component [of a recyclable product] limits the ability to recycle the item, any recyclable claim would be deceptive. . . . [If] its shape, size or some other attribute is not accepted in recycling programs, [it] should not be marketed as recyclable.” The plaintiff additionally alleged that even if any pods were incidentally recycled, they would still end up in landfills because there was no downstream market for the recycled pods.Continue Reading Keurig Settles K-Cup Recycling Claims