10th Circuit finds that disparagement by pet food company was commercial speech though affiliated vets’/nonprofits’ speech wasn’t

Posted on July 16, 2026 by rtushnet

KetoNatural Pet Foods, Inc. v. Hill’s Pet Nutrition, Inc.,
No. 24-3185 (10th Cir. Jul. 14, 2026)

The court of appeals affirms in part and reverses in part
the district
court opinion dismissing Lanham Act claims against Hill’s and other
defendants. Some of Hill’s challenged statements disparaging grain-free pet
food (like KetoNatural’s) were plausibly literally false commercial speech
subject to the Lanham Act, though not the statements from vets and nonprofits
affiliated with Hill’s.

KetoNatural alleged that Hill’s and its partner
veterinarians and non-profit organizations made false statements that grain-free
pet food is linked to a higher risk of canine heart disease.

“Hill’s and two other pet food companies dominate the market
for ‘traditional’ grain-containing complete-diet pet food in the United States.”
But Hill’s’ sales declined by more than 20% because of “the non-traditional pet
food boom,” in which startup KetoNatural participates. When Hill’s’ sales began
to fall, it allegedly conspired with several veterinarians and two ostensibly
independent non-profits to publicize the connection between grain-free diets
and dilated cardiomyopathy, a deadly canine heart disease.

The court explains Hills’s’ links to vets and nonprofits:

To ensure veterinary patronage,
Hill’s offers free continuing-education courses and literature to veterinarians
and has partnered with veterinarian researchers to support its marketing. In
return, Hill’s provides partner veterinarians with financial support and
promotes their work through its website. Hill’s also funds research at various
veterinary schools where partner veterinarians are located.

In addition to directly funding
veterinarians, Hill’s maintains connections to the larger veterinary world by
funding two non-profits that promote animal welfare. Morris Animal Foundation
funds veterinary research projects and institutions, including the projects and
institutions of the alleged co-conspirator veterinarians. And the Mark Morris
Institute contributes to veterinary education by producing textbooks, continuing
education courses, and course materials. Hill’s’ employees and directors have
served on the boards of both organizations.

Allegedly because of Hill’s’ targeted marketing campaign, its
revenues grew by more than 50% from 2018 to 2022, while sales in the
boutique/exotic/grain-free (BEG) category reversed and began to decrease by
nearly 6% per year. KetoNatural was not spared.

KetoNatural identified multiple sources of the allegedly
deceptive claims: Hill’s claimed on its website that BEG diets were connected
to canine heart disease and linked to veterinarians’ blog posts stating the
same; Hill’s offered similar educational materials and continuing education
courses to veterinarians on its website; vets’ public statements, including
publicizing an FDA investigation that ultimately failed to establish a
correlation between BEG diets and an increased risk of canine heart disease;
vets’ scientific publications; vets’ blogs; a Facebook page and associated
website promoting traditional pet food moderated/controlled by Hill’s and its
vets, which published statements affirming the link between BEG diets and
canine heart disease and deleted all comments contradicting the correlation; statements
by the non-profits; and statements by independent vets “[i]ndoctrinated by the
conspiracy’s educational efforts.”

The court recited the initial four-prong Gordon & Breach
test for commercial advertising or promotion (the fact that Lexmark
altered/removed (2) isn’t significant here): “(1) commercial speech; (2) by a
defendant who is in commercial competition with plaintiff; (3) for the purpose
of influencing consumers to buy defendant’s goods or services; (4) … disseminated
sufficiently to the relevant purchasing public to constitute advertising or
promotion within that industry.” Promotion, per past cases, means “a systematic
communicative endeavor to persuade possible customers to buy the seller’s
product,” even if not through publishing or broadcasting.

Starting with Hill’s’ website, including links to alleged co-conspirator
vets’ articles, claiming that BEG diets were dangerous: Although this wasn’t a
“classic advertising campaign,” the speech had an economic motivation and plausibly
promoted Hill’s grain-based pet food as safer for dogs, even without naming
Hill’s explicitly. Given Hill’s size—one of three dominant traditional pet food
sellers— “its disparagement of non-traditional, BEG pet food is a tacit
promotion of its own pet food.” And promoting a brand rather than a specific
problem is still commercial. The same analysis applied to the links on Hill’s’
website, even if the speech on the linked webpages was not on its own
commercial speech: “Because of the hyperlinks’ location and the fact that the
linked pages disparage BEG dog foods, the linked webpages can plausibly be
understood to promote Hill’s’ products.”

KetoNatural also plausibly alleged literal falsity under an
establishment claim theory: it plausibly alleged that scientific studies did
not establish the assertion for which they were cited. For example, the
statement “[w]hat seems to be consistent is that [DCM] does appear to be more
likely to occur in dogs eating boutique, grain-free, or exotic-ingredient diets”
was an establishment claim “because it establishes a correlation between the
diet and the disease by implicitly relying on some independent, objectively
verifiable study showing consistent and higher rates of canine heart disease in
BEG-eating dogs. And it is plausibly literally false because KetoNatural
alleges that no study supports the correlation.” Note that in this example, the
establishment claim is apparently a necessary implication—it’s the kind of
claim that experts like vets wouldn’t make if it weren’t backed up by
scientific evidence.

A similar analysis applied to at least some of the
veterinary education materials on Hill’s’ website that said things like, “[b]y
now, most veterinary professionals understand that there’s a link between BEG
diets and atypical dog breeds developing DCM.” “[E]ducational or informational
speech can become commercial when disseminated to promote the purchase of
goods, as was alleged here.”

Other challenged sources were not actionable. KetoNatural alleged
that Hill’s was vicariously liable for the Lanham Act violations by the alleged
co-conspirator veterinarians. But these statements weren’t ads and didn’t
reference a specific product, and thus weren’t commercial speech but First-Amendment-protected
statements on matters of public concern. “[U]nlike Hill’s’ statements, the
veterinarians’ statements are too attenuated from Hill’s” to have the necessary
economic motivation or promote Hill’s specifically. “The speaker matters. The
speaker provides context to the consumer that the speech may be commercial.”
And unlike Hill’s, the vets didn’t have a big chunk of the market. [FWIW, the
court’s attention to Hill’s market share seems wrong. If a new entrant said a
bunch of blatant falsehoods about ingredients in its product, we’d want to call
that commercial speech even if was careful to focus on ingredients also
available from other sources.] Also, “KetoNatural does not plausibly allege
that the veterinarians made these statements with economic motivation. Even
granting that the named veterinarians conspired with Hill’s to disparage BEG
dog food, KetoNatural does not plead sufficient factual allegations that the
veterinarians made these statements in direct expectation of pecuniary gain
from Hill’s.”

Receiving research funding from Hill’s, either directly or
indirectly through their universities wasn’t enough; there was no allegation that
research funding was contingent on the statements made in these blogs and
social media appearances, or that the research funding depended on the topic or
result of the research itself. “For a court to infer that the veterinarians’
speech was economically motivated, KetoNatural must at least plead facts that
the veterinarians were compensated or otherwise received a quid pro quo from
Hill’s for their speaking and writing.”

Similar analysis protected vets’ academic articles; the
Facebook page and associated website; and non-affiliated vets’ statements. Along
with their affirmative statements, the moderators deleted comments that
disagreed with them, and the court said, “[t]he act of deleting posts is
editorializing, which is speech, and thus arguably commercial speech,” citing Moody.
 [We have totally lost the plot on
“editorializing,” but I don’t think it matters here.] Along with the distance
from Hill’s, the court commented, “we do not know who the Facebook moderators
are, and most importantly, how they participated in and were economically
motivated by the alleged conspiracy. KetoNatural admitted as much. It alleged
only that the moderators ‘work[ed] closely’ with a veterinarian—but did not
otherwise allege involvement in the conspiracy.”

Likewise, the complaint didn’t plausibly allege that the
nonprofits engaged in commercial speech. They didn’t run ads or reference a
specific product or brand, nor were there allegations that they were motivated
by direct economic gain from Hill’s. “Allegations that Hill’s funds the
Foundation and influences its executive decisions cannot satisfy the quid pro
quo necessary to successfully allege that Hill’s’ gains economically motivated
the Foundation to make such statements.”

from Blogger https://tushnet.blogspot.com/2026/07/10th-circuit-finds-that-disparagement.html

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safety claims aren’t vague in context of child car seats

Posted on July 16, 2026 by rtushnet

Ricardo Moncada v. Nuna Baby Essentials, Inc., — F.Supp.3d
—-, 2026 WL 866852, No. 25-cv-2592 (PKC) (S.D.N.Y. Mar. 30, 2026)

Nuna allegedly marketed its Rava-brand children’s car-seat
product by emphasizing its safety features and a product-testing regimen that
exceeded American standards. But then Nuna announced that the Rava’s adjustable
harness had a design defect that increased the risk of child injury. Its
voluntary recall required consumers to cure the defect using a self-repair kit
that was allegedly both difficult to follow and results in a car seat that does
not function as originally promised. Ricardo Moncada sued under sections 349
and 350 of the New York General Business Law, alleging a price premium theory. An
affirmative falsity claim survived, though not an omission claim, and the
implied warranty of merchantability claim failed because the plaintiff didn’t
provide Nuna with pre-suit notice of her claim, which New York law requires as
a condition precedent.

Nuna advertised the Rava as a “[f]an favorite for security,
longevity and sleek design,” featuring a “[q]uick-release” harness that “makes
it easy to fasten [children] in.” It advertised that the product was
“extensively tested” using “advanced” methods that went “above and beyond
what’s required” through testing at “accredited, independent labs.” Nuna
repeatedly touted that the Rava’s “advanced safety technology” exceeded
“American safety standards.” Rava car seats sell for $450 to $550, allegedly a
“premium price.”  

But the Rava’s harness-adjustment cover allegedly proved to
be vulnerable to debris like crumbs and dust, which prevents the harness from
clamping properly and causes the harness to loosen. NHTSA received 129
complaints about the Rava, 125 of which cited loose harnessing. Nuna thus
recalled more than 600,000 Rava car seats, though it did not actually recall
the entire product but instead sent affected consumers a “seat pad, head
support cover and cleaning kit.” This allegedly put the onus on consumers to
disassemble and reassemble “a dangerous and defective product” by using a
purportedly flawed “Remedy Kit.”

Nuna argued that plaintiffs didn’t have standing because of the
voluntary recall and remedy kit. “But plaintiffs have made non-conclusory
factual allegations about the claimed inadequacy of the recall, and it is well
established that a plaintiff has a concrete injury if she overpaid for a
product that did not perform as promised.”

Plus, violations of GBL §§ 349 and 350 were plausibly not
puffery. While a reasonable consumer would understand labels like “premium,”
“timeless” and “expertly engineered” to be statements of opinion, Nuna’s
descriptions of its compliance with safety standards and rigorous testing
requirements could be factual. Nuna claimed that the Rava “exceeds American
safety standards,” and that “[o]ur baby gear is extensively tested before it
leaves the factory. We use advanced equipment and testing methods, going above
and beyond what’s required. To ensure compliance with safety standards, we
regularly have our gear tested at accredited, independent labs.”

Nuna argued that these claims lacked specifics. But its cited
case was Lee v. Mikimoto (Am.) Co., 2023 WL 2711825, at *5 (S.D.N.Y. Mar. 30,
2023), where a pearl seller claimed to “only use the finest pearls that meet
the strictest standards….” and other sellers advertised complying with
American Gemological Society standards. This was a different context: “it is
plausible that a reasonable consumer encountering Nuna’s statements would
understand the company to be asserting that the Rava was subject to thorough
and vigorous testing that exceeded safety standards required by law. That
Nuna’s marketing statements did not cite a governing statute or regulation does
not make it less plausible that a consumer would understand Nuna to be making a
verifiable statement of fact about the Rava’s safety compliance and
product-testing regimen.”

However, an omission-based claim that Nuna was liable for
knowing about but failing to disclose “grave risks” about the Rava failed. The
complaint alleged Nuna’s knowledge of consumer complaints filed with NHTSA and
posted on Reddit. Section 349 allows for omission-based liability where “the
business alone possesses material information that is relevant to the consumer
and fails to provide this information” and considers “whether plaintiffs
possessed or could reasonably have obtained the relevant information they now
claim the [defendant] failed to provide.” Reddit’s message boards and NHTSA
consumer complaints are available to the public. The complaint didn’t allege any
information about problems with the Rava harness known to Nuna alone, so the omission
wasn’t plausibly deceptive.

from Blogger https://tushnet.blogspot.com/2026/07/safety-claims-arent-vague-in-context-of.html

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Under Armour defeats Lanham Act claim, must continue to fight tortious interference

Posted on July 16, 2026 by rtushnet

Multiple Energy Technol., LLC v. Under Armour, Inc., 2026 WL
2016679, 2:20-CV-664 (W.D. Pa. Jul. 13, 2026)

Bioceramic powder is “a substance that is integrated into
clothing, and, when worn, allegedly improves sleep and muscle recovery.” Plaintiff
MET made a type of bioceramic powder called Redwave. It entered into “essentially
an exclusive supply agreement” with Under Armour, which makes athletic apparel.
But then Under Armour changed course and partnered with another producer, Hologenix,
whose bioceramic powder was called Celliant. MET alleged that Under Armour
falsely marketed its Celliant apparel as essentially being “FDA approved” when
it wasn’t, encouraged some of its manufacturing partners not to deal with MET,
and used confidential information from MET. Tortious interference is the only
claim that survives; I’ll only discuss that and false advertising under the
Lanham Act.  

After ending its relationship with MET, Under Armour
encouraged Tom Brady’s company TB12 and two other textile manufacturing
partners to use Celliant, not MET’s Redwave. Under Armour falsely promoted
Celliant as “FDA approved” or “FDA designated” to TB12. Likewise, “Under Armour
promoted on its website that the FDA determined that Celliant increases
localized circulation, leading to faster recovery,” and issued a press release
with similar language.

blurry image from opinion, sorry

The alleged statements to manufacturing partners weren’t
actionable because there was no evidence that Under Armour made false
statements about its FDA designation to two partners, “much less that these
false statements affected the companies’ decisions to end their relationships
with MET.” Instead, Under Armour required the use of Celliant (and not Redwave)
as a condition of its potential partnerships; it was that pressure that
mattered. Under Armour did make the FDA claims about Celliant to TB12, but there
they didn’t qualify as “commercial advertising or promotion.”

Using the Gordon & Breach standard, the
statements to TB12 were neither for the purpose of influencing consumers to buy
the defendants goods or services nor “disseminated sufficiently to the relevant
purchasing public to constitute ‘advertising’ or ‘promotion’ within that
industry.” It was undisputed that TB12 wasn’t an Under Armour consumer, but
instead a branding partner working with Under Armour to sell products, and
preventing TB12 from partnering with MET “didn’t otherwise affect consumers’
decisions to buy Under Armour products.” Nor were the statements directed to
the relevant purchasing public or sufficiently disseminated, since the relevant
consumer market consisted of individuals interested in purchasing articles with
bioceramics, not branding partners, so statements to TB12 weren’t “ ‘directed
at the purchasing public.’ ”

[Why couldn’t manufacturers also be relevant consumers where
the product is always a component of another product?] Even if TB12 counted, the
market wasn’t made up of a “’relatively limited’ ” number of potential
purchasers, so statements to TB12 alone would not be “ ‘disseminated
sufficiently.’ ”

The website statements, by contrast, were actionable
commercial advertising or promotion, but MET didn’t show that the press release
had made a false FDA claim.

In a standing-limiting reading of Lexmark, the court
found that MET lacked statutory standing.

First, MET couldn’t show a link between Under Armour’s
website statements and lost royalties from Redwave-branded products. The court excluded
MET’s expert report, without which there wasn’t enough evidence of proximate
causation. Other economic and reputational harm was “simply too remote to
establish a proximate causal link to the statements on the website.” There was
no direct competition, reputational disparagement, or a “1:1 relationship”
between the plaintiff’s sales lost due to the false advertising and the
defendant’s gains. The most directly injured victims would be any other bioceramic
apparel manufacturers, and then existing suppliers to Under Armour’s direct
competitors, not MET.

MET also failed to provide enough evidence of materiality to
get to a jury. “[N]othing in the record
suggests that any specific consumers saw the false advertising on Under
Armour’s website and changed their purchasing decisions because of it,” and MET’s
survey was excluded (see below). Nor were the parties direct competitors, which can save
some materiality arguments.

An antitrust claim failed because it was an antitrust claim.
MET also failed to create a triable issue on its trade secret claim/breach of a
non-disclosure agreement claim. But there was a triable issue on tortious
interference with an existing contract with one manufacturer and with prospective
business expectancies with two others. Although Under Armour’s discussions with
them weren’t “commercial advertising or promotion,” but rather “business
partners talking about what supplier to use” that didn’t make them necessarily
justified or privileged.

Multiple Energy Technol., LLC v. Under Armour, Inc., 2026 WL
2015216, No. 2:20-CV-664 (W.D. Pa. Jul. 13, 2026)

The court excludes two of MET’s experts, one of whom focused
on the antitrust claim, which I will ignore.

For the Lanham Act claim, MET’s proffered expert Dr.
Maronick offered a supplemental survey and report.

His original survey and report concluded that “a
statistically higher percentage of respondents seeing the Under Armour webpage
claiming that products ‘Powered by Celliant have been determined by the FDA to
increase localized circulation, leading to faster recovery’ believe th[at]
Under Armour products will provide the increased circulation and faster
recovery benefits claimed than do respondents who saw language that ‘the FDA
had not made a determination whether products made with Celliant increase
circulation and lead to faster recovery.’ ” It also concluded, “Under Armour’s
claims about increased circulation and faster recovery are Important or Very
Important in consumers’ decision to buy Under Armour products with either
Celliant or Redwave fabric.”

In response to Under Armour’s deposition, Dr. Maronick
“redid the survey,” creating the supplemental survey and report at issue. Specifically,
(1) he matched the images and the font sizes and lengths of the “FDA
determined/FDA has not determined” language shown to respondents across the
test and control groups; and (2) rotated the positive and negative answers to
both groups’ question on the “importance of the claims in consumers’ purchase
decision.” The test cell showed Under Armour’s actual landing pages, and the
control group was presented with landing pages that instead contained the
statement, “The FDA has not made a determination about whether products powered
by Celliant increase localized circulation leading to faster recovery.”

In his supplemental report, Dr. Maronick found that the
“design differences” between the original and supplemental surveys “had no
effect on consumers’ perceptions of Under Armour’s performance claims for its
‘Celliant-Powered’ products” and “played no role in assessing consumers’
reactions to claims made by Under Armour.”

The court initially found that the first survey’s flaws
merited exclusion. It now evaluated the supplemental survey, and still found it
too flawed to admit because it (a) used a fundamentally inadequate control; (b)
materially distorted marketplace conditions; and (c) didn’t mitigate
non-response bias or identify a target population.

The control was “problematic” because it “artificially [drew
respondents’ attention] to the fine-print language at issue[,]” making it
“impossible to determine [the cause of] any disparity between the respondents’
reactions to them.” First, the control survey focused its respondents on the
fine-print text addressing the FDA claim at issue by framing that text in a
white box, while no box surrounded the FDA-related text in the test group’s
same question. Likewise, the control survey underlined the direction “[n]ote
the statement about products ‘Powered by Celliant’ at the bottom of the
statement,” “increasing the likelihood respondents would read the fine-print
statement explaining that the FDA had not yet determined whether Celliant
improved athlete recovery.” In the test cell, the same direction wasn’t
underlined. The court found these differences to be “significant” and likely to
skew the results.

one without a box, one with

Additionally, the test survey used improper negative
language— stating that “[t]he FDA has not made a determination about whether
products powered by Celliant increase localized circulation leading to faster
recovery.” The Court previously found such language flawed because negative
language creates different language than positive language. (I’m not sure why
that is distorting—if the truth is that the FDA hasn’t evaluated the statement,
how else can you say that? If negative language matters to consumers, then that
in itself seems like evidence of materiality.) Alone this would go only to
weight, but the variations amplified the negative language’s skewing effects,
making the control improper.

The survey also “inappropriately distorted market conditions
by flagging the variable about which the survey intended to ask respondents—the
FDA claim—without having properly screened out respondents who otherwise would
have ‘paid no attention’ to the fine-print claim.” [This is downstream of a larger
debate about whether attention or comprehension, once perceived, is more
important—from a regulatory perspective I favor comprehension, once perceived,
because I don’t think there’s any social benefit in deceptive statements that
might be overlooked, but reasonable minds can certainly differ.]

The survey “funneled” respondents by asking questions about
magnified pictures of the fine-print language, and screened out respondents “[w]ere
[not] able to see the images clearly.” But there was no filtering of
respondents who, while physically able to see the webpages, didn’t notice or
read the fine-print text, thus materially distorting marketplace conditions.

Finally, the supplemental survey failed to account for
non-response bias and identify a target population.

from Blogger https://tushnet.blogspot.com/2026/07/under-armour-defeats-lanham-act-claim.html

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DDC won’t protect World Professional Association for Transgender Health against FTC/WD Tex

Posted on July 13, 2026 by rtushnet

World Professional Association for Transgender Health v.
Federal Trade Comm’n, No. 26-532 (JEB), 2026 WL 1999008 (D.D.C. Jul. 10, 2026)

Some
broader commentary on the regime’s mostly successful attempt to attack transgender
care in Texas. A main promise of the FTC’s chair, when seeking the job, was that he would
abuse the FTC’s power to go after gender-affirming care, and he’s delivering.
Here, Judge Boasberg seems right in a time of ordinary law, but the result is
to defer to Reed O’Connor’s tender mercies.

Previously, Judge Boasberg protected WPATH against the FTC’s
CID
seeking a broad range of internal records. He held that WPATH had shown
that it was likely to succeed on the merits of its claim that the FTC issued
the CID in retaliation for WPATH’s constitutionally protected speech and that it
faced irreparable harm without preliminary relief.

The FTC and several states then brought a separate
enforcement action against WPATH in the Northern District of Texas, alleging unfair
or deceptive trade practices and false advertising. Judge Boasberg found that
the cases were not so related as to justify an anti-suit injunction and require
the Section 5 claim to proceed in DC.

“However the parties characterize the ongoing action in the
Northern District of Texas, it is not an attempt to enforce the CID, which the
FTC has withdrawn.” The FTC’s Texas suit attacks certain of WPATH’s statements
that bear a “striking” resemblance to the statements that the CID targeted,
which could open it up to discovery in Texas of the very same information. “But
the Court’s injunction did not protect WPATH from complying with all
information-seeking processes — only the CID that the Court held was likely
retaliatory.”

Given that, an anti-suit injunction where no jurisdictional
issues are implicated would require a “truly compelling showing,” and the
background rule is that “a plaintiff who files a pre-enforcement challenge to
stop the FTC from obtaining information cannot then force the Commission to
bring later enforcement actions as compulsory counterclaims in plaintiff’s
chosen forum.” The court wasn’t “prepared to conclude that an action that ‘involve[s]
assertion of rights under a Congressionally mandated enforcement scheme’ is
akin to a private dispute between parties that should reasonably be
consolidated in one forum and time. And before one court acts to terminate
another’s jurisdiction, it must be on sure footing indeed.”

Being subject to suit in Texas wasn’t itself a violation of
WPATH’s First Amendment rights, nor was the cost of litigating in two fora. For
what it will be worth (Judge O’Connor doesn’t seem minded to give other judges
the same courtesy), “WPATH is free to cite this Court’s prior Opinion in any
attempt to stave off discovery in the Texas action.”

Once again, the presumption of regularity seems to be
operating here to empower the worst among us.

Note that the FTC here doesn’t care that the 5th Circuit gutted its ability to get monetary relief, since it is attempting here to suppress speech.

from Blogger https://tushnet.blogspot.com/2026/07/ddc-wont-protect-world-professional.html

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Canadian imported drugs whose origin was disclosed to end consumers couldn’t trigger infringement/false advertising liability

Posted on July 6, 2026 by rtushnet

AbbVie Inc. v. Payer Matrix, LLC, No. 23 CV 2836, 2026 WL
1846752 (N.D. Ill. Jun. 26, 2026)

Another round in AbbVie’s fight
against Canadian imports.

Payer Matrix contracts with employers or an employer’s
pharmacy benefit manager (PBM) or third-party administrator (TPA) to help their
members access high-cost specialty drugs not covered under an insurance plan,
including by assisting them in applying for drug companies’ patient assistance
programs (PAP). PAP eligibility is determined by the drug company; it often requires
applicants to be insured or underinsured. AbbVie specifically requires the
member’s healthcare provider to complete much of the application, “so Payer
Matrix follows up with providers to ensure that the applications submitted are
timely.” “Payer Matrix disclosed its involvement in these applications to
AbbVie and worked with AbbVie representatives as part of its PAP eligibility
investigations.” It also “started a biosimilar program to encourage members and
their health care providers to explore biosimilar alternatives to brand-name
specialty drugs.”

AbbVie didn’t like that PAP lowered its revenue compared to its
co-pay assistance program. It described alternate funding providers (AFPs) like
Payer Matrix as a “malignant tumor” that “needed to be dealt with strategically
and aggressively.” It therefore changed its PAP eligibility requirements to exclude
patients working with Payer Matrix.

AbbVie told representatives to say that AbbVie had “updated
[its] eligibility guidelines to respond to changes with [the patient’s]
insurance provider,” and to say that AFPs “[c]an cause delays to treatment and
be highly disruptive to patients, as well as infringing on benefits intended
for patients who are uninsured or underinsured.” AbbVie sent denial letters
stating that the denial was because AbbVie “believe[d] [the patient’s]
insurance provider is, or is partnering with a third-party company to,
inappropriately utilize our program instead of their insurance coverage.” Sometimes
its representatives speaking to patients went further, telling patients that
Payer Matrix was “committing fraud” or “operating illegally,” and directing
them to contact Payer Matrix for assistance in paying for their medications. “AbbVie
representatives also responded to telephone inquiries from healthcare providers
by telling them that ‘Payer Matrix was causing [ ] problems with coverage,’
that Payer Matrix was acting illegally, and that the providers should not work
with Payer Matrix.”

Meanwhile, the Patient Access Network (“PAN”), a charitable
foundation to which AbbVie donated approximately $100 million in 2023, began
speaking out against AFPs and specifically Payer Matrix. (Um. I’m sure they
have plenty of legal advice, and of course I don’t expect our tax enforcers to
do anything, but how on earth is it legal for AbbVie to give a bunch of money
to a charity that it can write off as a donation and then get the money back
from the charity, as expected? They should be allowed to write off the cost of
the drugs purchased with AbbVie’s money, but that would be a lot less.)

Payer Matrix sued for various product disparagement/advertising
torts as well as antitrust and RICO claims. The RICO claims failed because they
were RICO claims. The antitrust claims failed because they were antitrust
claims (it was antitrust injury that was missing).

Defamation: Illinois recognizes qualified privileges that
protect against liability unless the publication was knowingly false or
published while entertaining serious doubts about its truth, or the publication
was disseminated beyond the proper parties. Some of AbbVie’s communications
were protected by qualified privilege, including statements in the online PAP
application, letters to denied PAP applicants, talking points provided to call
representatives to respond to questions about PAP denials, resulting statements
by call representatives, and some AbbVie statements to healthcare providers. Talking
points to help AbbVie’s call representatives respond to questions about the
instant lawsuit weren’t.

So, for those, knowledge of falsity or reckless disregard
was required, or statements beyond the scope of the privilege—the latter was
only alleged for a few statements by call representatives who said that Payer
Matrix was acting “illegally” or “committing fraud,” and statements to
healthcare providers that they should not work with Payer Matrix and that “all
of the other [drug] manufacturers” would be following AbbVie’s lead. “The
qualified privilege in this case is justified by the need for AbbVie to help
patients and their providers understand their eligibility for the PAP. It is
reasonable to conclude that statements that Payer Matrix was acting illegally
and that healthcare providers should not work with Payer Matrix go beyond the
scope of that need.”

As to plausible knowledge of falsity, the talking points
allegedly directed AbbVie call representatives to state that AFPs “[c]an cause
delays to treatment and be highly disruptive to patients, as well as infringing
on benefits intended for patients who are uninsured or underinsured.” “But,
Payer Matrix alleges, the delays were not Payer Matrix’s fault, and AbbVie,
whose own benefits investigations were the real reason for the delays, knew it.
That is enough to plausibly allege that AbbVie made this statement [and similar
ones to a healthcare provider] while knowing that it was false.”

It was also plausible that AbbVie knew the falsity of the
statement that it “updated [its] eligibility guidelines to respond to changes
with [the applicant’s] insurance provider,” since AbbVie had allegedly worked
with insurance plans affiliated with Payer Matrix and understood Payer Matrix’s
role “since at least 2021,” and thus there were no AFP-related changes to
applicants’ insurance plans in 2023 when the terms changed.

In addition, AbbVie plausibly knew of the falsity of
statements by its representatives instructing denied PAP applicants to ask
Payer Matrix for help with drug coverage, since it knew that wasn’t Payer
Matrix’s role in the system.

But AbbVie’s statements about entities “inappropriately”
using the PAP weren’t statements of verifiable fact, and so there couldn’t be
scienter (or, of course, liability).

Additionally, AbbVie’s talking points explaining its reasons
for bringing this lawsuit were non-actionable opinion: that Payer Matrix “misus[ed]
patient assistance programs” and that “AbbVie aims to protect [its] programs
and patients from [Payer Matrix’s] exploitative tactics.” These weren’t terms
with precise meanings, and the context—explaining the lawsuit—bolstered the “opinion”
characterization.

However, accusations that Payer Matrix’s conduct was
“illegal” or “fraud” were verifiable in context.

Additional barriers defeated some accusations: Alleged
statements by AbbVie that it changed its PAP eligibility requirements due to
“changes with [the patient’s] insurance provider” were not “about” Payer
Matrix. And alleged statements directing members to ask Payer Matrix for
assistance with drug coverage were neither defamatory per se nor defamatory per
quod. On their face, they didn’t impute commission of a crime, suggest an
inability or lack of integrity in performing employment duties, or prejudice
Payer Matrix in its trade (per se). Even if, as argued, they implied that Payer
Matrix was responsible for paying drug costs but failed to do so, Payer Matrix
didn’t plead a connection between its damages and this statement (per quod).

The remaining statements (illegality, fraud, delays) were
defamatory per se, and Payer Matrix also alleged “special damages, including
loss of contracts with health plans, cessation of referrals from brokers and
[healthcare providers], lost profits, and harm to its reputation in the
healthcare and health benefits industries,” including a $26 million drop in
revenue from a single broker in 2024.

Tortious interference: It wasn’t independently wrongful to
refuse to allow PAP participation by members of insurance plans affiliated with
Payer Matrix or publish PAP policies and send denial letters that identified
Payer Matrix by name. As for the stuff that survived the defamation screen
above, AbbVie argued that it didn’t communicate directly with Payer Matrix’s
actual clients. But “AbbVie had reason to believe that its comments would make
their way back to Payer Matrix’s clients; it would be unreasonable to expect
patients to whom AbbVie allegedly accused Payer Matrix of fraud to keep those
accusations from their plan administrators or sponsors.” Payer Matrix also made
specific allegations about losing specific clients due to AbbVie’s accusations.

Illinois Consumer Fraud Act: The Illinois Supreme Court
recently emphasized that in all ICFA claims, the plaintiff must allege that it
was the intended target of the alleged deception. Payer Matrix didn’t allege
that AbbVie intended for it to rely on any alleged deception or unfairness, but
only that it intended to cause reliance by “Members, Plans, PBMs, and TPAs.” So
that claim was dismissed.

Illinois Uniform Deceptive Trade Practices Act Claim: The
alleged false statements underlying the claim were not made “in the context of
false advertising or promotion or a trademark violation.” Payer Matrix was
judicially estopped from arguing that the DTPA covered the statements at issue.
It defeated certain of AbbVie’s Lanham Act claims, and DTPA claims based on the
same conduct, based on the arguments that (1) the Lanham Act is essentially
coextensive with the DTPA, and (2) the accused statements were not made in
commercial advertising or promotion. It could not now argue that the DTPA
covered more than commercial advertising or promotion.

AbbVie also reasserted trademark/false association and false
advertising claims based on allegations that Payer Matrix imported or helped
import medicines from Canada.

In 2024, Payer Matrix began facilitating the importation of
Canadian AbbVie medications in partnership with RxFree4me and RxFree4me’s
affiliated Canadian pharmacies. Its advertising describes RxFree4me as its
“vendor partner” and makes clear that the drugs are sourced internationally. For
plans that participate, each patient gets a form asking them to authorize Payer
Matrix to contact the patient’s prescriber and send the patient’s prescription
to RxFree4me. “The form also states that the drugs will be dispensed by foreign
pharmacies and asks the patient to appoint Payer Matrix as an agent to
facilitate the order, including having the product packaged and delivered.”

If the patient completes the form, Payer Matrix asks the
patient’s doctor to send the patient’s prescription to one of RxFree4me’s
partner U.S. pharmacies, which then works with a Canadian doctor who writes a
new prescription copied from the original. That goes to a Canadian pharmacy for
filling and shipment. “Payer Matrix monitors and facilitates the shipments,
including by contacting patients to confirm that they received the shipments.”

There are alleged differences between the two countries’
drugs, primarily FDA approval versus approval by Health Canada; packaging
instructions with either a US or Canadian number to report side effects; and contact
information for either a US or Canadian patient support program. “Some Canadian
AbbVie labels include temperature ranges in Celsius, and dosage information for
children and adolescents based on their weight in kilograms, whereas the U.S.
AbbVie labels list temperatures in Fahrenheit and give weights in pounds.”

AbbVie also alleged that there were differences in how the
drugs are shipped: Payer Matrix’s method uses third-party carriers that AbbVie
hasn’t approved. “[B]ecause international shipping routes regularly exceed the
storage temperature ranges for AbbVie’s medications, AbbVie ships its medicines
in sealed, temperature-controlled containers and requires its authorized
distributors to follow specific temperature-related guidelines during storage
and transport.” However, it was unable to ensure that the shippers used by
Payer Matrix comply with these requirements. Also, recalls are region-targeted,
so U.S. patients would be alerted to recalls for drugs that they bought in the
U.S., but not for drugs that they bought in Canada.

Even assuming that this was a “gray-market” case, AbbVie’s
claims failed. Such cases find confusion only if there’s a material difference.
Note: They should also fail if the consumer knows what she’s getting, even if
it has a material difference! Maybe there can be unfair competition without
competition, but there shouldn’t be trademark infringement without confusion.

And indeed, the court concluded that AbbVie needed to allege
facts “plausibly showing that consumers would be confused by differences
between the foreign and domestic products.” The court concluded, once again, that
“[i]t is no secret that RxFree4Me sources drugs from Canada,” and “it should be
obvious to Payer Matrix’s members that the imported drugs do not undergo U.S.
regulatory processes because they are sourced from Canadian pharmacies.” Plan members
fill out an authorization form that represents that the medication will be
“dispensed by the foreign Pharmacy.” The form also authorizes Payer Matrix—not AbbVie—to
facilitate the international order, “including by packing the Product and
delivering it to the patient.”

“The differences that AbbVie cites are exactly the
differences that Payer Matrix’s customers would reasonably expect from
medications purchased internationally.” Even the shipping quality controls argument
was “obviated by the fact that Payer Matrix members seeking non-U.S. drugs
authorize Payer Matrix (that is, not AbbVie) to facilitate packing and delivery.”
These differences could therefore not be material. (That’s not how I would have
said it, but it fits with an empirical definition of materiality: We know that the
differences weren’t material to the consumers who ordered the foreign drugs because
they knew they were foreign drugs shipped by Payer Matrix.)

So nice to see: “To be sure, many of the cases suggest that
the types of labeling, compliance, and quality control issues alleged here can
be material in certain circumstances. But none of those cases involve the type
of informed purchase at issue here.” There was no allegation here of
counterfeiting, and the disclosures were made to end users, not intermediaries.

What about confusion by subsequent purchasers?  “That rationale holds up for the types of
extremely expensive durable goods at issue in [cases involving farm equipment],
but it does not make sense here, where Payer Matrix’s members purchase
consumable medications.”

Nor were the differences as significant as those in Novartis
Animal Health US, Inc. v. Abbeyvet Exp. Ltd., 409 F. Supp. 2d 264 (S.D.N.Y.
2005), where, a website sold British-market pet medications to U.S. consumers. “Even
assuming the consumers in that case knew that they were purchasing medications
intended for the British market, the differences were so significant that U.S.
consumers would likely be confused by the British product. For example, the
U.S. versions of the pills were flavored, and the British versions were
unflavored; the British versions were also sold in different dosages.” Those differences
would be material, unlike converting from pounds to kilograms. “And unlike the
differences at issue here that are inherent to the differences between the
Canadian and U.S. pharmaceutical markets—such as regulation by Canadian rather
than U.S. regulatory bodies, and use of the metric system—there is nothing
about the British pet medication market that would make a U.S. consumer expect
to receive an unflavored medication when they were used to buying flavored
medications from the same brand.”

from Blogger https://tushnet.blogspot.com/2026/07/canadian-imported-drugs-whose-origin.html

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advertising injury policy covers Lanham Act/intentional interference claims even though policy uses different words for the torts

Posted on July 3, 2026 by rtushnet

IntermediaryEd v. Cincinnati Ins. Co., 2026 WL 1847615, No.
3:25-cv-00038-SHL-HCA (S.D. Iowa, May 20, 2026)

The court introduces the case:

After filing a lawsuit against a
competitor in Tennessee, Plaintiff IntermediaryEd (formerly known as “ACT”)
sent letters to two of the competitor’s customers making disparaging statements
about the competitor’s products. This was a bad move. The competitor brought
counterclaims under the Lanham Act and for intentional interference with
business relationships, and ACT ended up on the wrong end of a
multimillion-dollar jury verdict.

Its commercial general liability policy covered “personal
and advertising injury” arising out of the “oral or written publication, in any
manner, of material that slanders or libels a person or organization or
disparages a person’s or organization’s goods, products or service.” Thus, ACT was
entitled to defense and indemnity coverage for both the Lanham Act and
intentional interference claims.

But there was an important caveat: The policy contained
exclusions for “knowing violation of rights of another” and/or “material
published with knowledge of falsity,” and the court couldn’t conclude as a
matter of law that ACT lacked such knowledge. Thus, ACT wasn’t entitled to
partial summary judgment on that issue.

The jury in the underlying case was instructed on the elements
of a Lanham Act claim, including commercial advertising and promotion, and on
the elements of intentional interference with business relationships, which
required “improper means,” including “conduct such as violation of statutes,
regulations, or laws. Violence, threats or intimidation, bribery, unfounded
litigation, fraud, misrepresentation, or deceit, defamation, duress, undue
influence, misuse of insider confidential information, or breach of its
fiduciary relationship.” The jury instructions continued that punitive damages
“are reserved for egregious conduct” and should be awarded only if WIN “has
shown by clear and convincing evidence that the defending party has acted
intentionally, recklessly, maliciously, or fraudulently.”

The jury awarded damages ACT in the amount of $218,000 for
false advertising under the Lanham Act and $5,400,000 for intentional
interference with business relationships, additionally finding that punitive
damages should be awarded, though not setting an amount.

The instructions continued (cleaned up):

A person acts intentionally when it
is the person’s purpose or desire to do a wrongful act or to cause the result.
A person acts recklessly when the person is aware of but consciously disregards
a substantial and unjustifiable risk of injury or damage to another. … A person
acts maliciously when the person is motivated by ill will, hatred, or personal
spite. A person acts fraudulently when (1) the person intentionally either
misrepresents an existing material fact or causes a false impression of an
existing material fact to mislead or to obtain an unfair or undue advantage,
and (2) another person suffers injury or loss because of reasonable reliance
upon that representation.

ACT ended up reaching an out-of-court settlement with WIN
(which was redacted), and thus the jury never rendered a verdict on the amount
of punitive damages to award.

CIC argued for a formalistic interpretation: “if WIN did not
recover on theories of slander, defamation or disparagement, then coverage must
be denied, period.” The court disagreed. Coverage can exist when liability is
founded on a different legal theory than the one in the policy but that
involves “identical conduct” by the insured to what would be covered, as long
as the policy does not limit coverage to specific tort names and specify the
formalistic labels that govern. Here, the relevant policy language was “simply
too broad” to be formalistic:

By covering injuries for “personal
and advertising injury” that arise out of the “oral or written publication, in
any manner, of material that slanders or libels a person or organization or
disparages a person’s or organization’s goods, products or services,” the CGL
Policy includes coverage for tort claims that arise out of false and
disparaging statements about a competitor’s goods, products, or services,
regardless of the label attached to those claims. In other words, the policy
covers “causes of action for product disparagement or one that is analogous.”

This conclusion made sense because “courts use a wide range
of terminology to describe commercial tort claims arising out of the ‘oral or
written publication, in any manner, of material that slanders or libels a
person or organization or disparages a person’s or organization’s goods,
products or services.’” Relevant labels include “disparagement,” “product
disparagement,” “trade libel,” “slander of goods,” “injurious falsehood,” “product
defamation,” “commercial disparagement,” or “trade defamation.” “Regardless of
the terminology, the gist of these claims is the same: ‘a party publishes
material derogatory to another’s business, intending to prevent others from
dealing with plaintiff.’” All these torts fell within the scope of the
coverage, “regardless of the exact terminology used in the underlying
litigation.” And sometimes, as here, an intentional interference with business
relationships claim will also fall within the scope of coverage, because of the
“improper means” element of business interference torts: a plaintiff can prove
improper means in the form of trade libel or commercial disparagement. Indeed,
“[t]rade libel and product defamation” are “born of the cause of action for
unlawful interference.”

Likewise, “claims under the Lanham Act sometimes revolve
around trade libel or commercial disparagement in the form of false advertising
regarding a third party’s goods, products, or services. Many courts even
characterize such claims as ‘product disparagement under the Lanham Act’ or
similar verbiage.”

Thus, ACT was entitled to indemnity coverage as a matter of
law, subject to the exclusions. It didn’t matter that the underlying
counterclaimant proved only pecuniary losses in the underlying litigation, not
“reputational harm.” Indeed, in the commercial context, pecuniary losses are a
form of reputational injury: “there is arguably no better way for a business to
show that its products have become ‘lower in esteem or reputation’ or ‘lower in
rank’ than to prove that customers stopped buying them.” Anyway, the policy language
clearly contemplated commercial torts, not just invasion-of-privacy and
defamation-type torts in the personal sense.

It was also clear that the underlying verdict was based on covered
claims; even though both the Lanham Act and intentional interference can
be broader than product defamation (etc.), the underlying litigation’s specific
theories were all based in these business torts.

What about the exclusion for “knowing” falsity? It doesn’t automatically
apply to claims for which something less than “knowledge” is sufficient to
establish liability. “For example, the exclusion does not necessarily apply to
defamation claims because they can be established through evidence that a false
statement was made with reckless disregard for the truth.” Thus, further
development of the record was necessary to determine whether ACT’s conduct was
“knowing” in the way contemplated by those exclusions. “The fact that [the
underlying plaintiff] established the elements for an award of punitive damages
does not change this conclusion, although it undoubtedly strengthens CIC’s
position,” given that the instructions didn’t require intent: “As phrased, the
instruction allows punitive damages based on something less than ‘knowing’
conduct.”

from Blogger https://tushnet.blogspot.com/2026/07/advertising-injury-policy-covers-lanham.html

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“hypoallergenic” plausibly means “free of ingredients likely to sensitize the skin”

Posted on July 3, 2026 by rtushnet

Novick v. Unilever U.S., Inc., 2026 WL 1879145, No. 25cv4804
(EP) (JBC) (D.N.J. Jul. 30, 2026)

The court mostly allows claims that the “hypoallergenic” and
“sensitive skin” representations on Unilever’s Dove Sensitive Skin Body Wash
are false and misleading because the body wash contains ingredients that are
known skin sensitizers that cause allergic reactions under New Jersey, New
York, and California law. According to the complaint, “[t]he scientific and
regulatory definition of a skin sensitizer is a substance that causes
sensitization by skin contact in a substantial number of persons based on human
evidence or appropriate animal testing.”  

A skin sensitizer “may elicit an allergic response at
concentrations smaller than 0.1% in individuals who are already sensitized to
the chemical,” making the “entire product mixture” a skin sensitizer. Allegedly,
a “product that is a skin sensitizer is not hypoallergenic and is not suitable
for sensitive skin,” although there’s no FDA regulation defining the terms.

“Like similarly situated consumers,” plaintiffs allegedly do
“not know the identity of every ingredient” to which their families “are
allergic … [and do] not know [to] which ingredients” they or their families
“may develop an allergy,” but the Dove product allegedly contains at least six
skin sensitizers in amounts “that can be reasonably expected to induce an
allergic response in a significant number of people, and especially so in the
[Product’s] intended customer base.” Consumers allegedly expect a product
labeled as “hypoallergenic” to contain no skin sensitizers that could elicit an
allergic response in sensitized individuals.

Notably, Dove brand Sensitive Skin Body Bar allegedly “contains
neither fragrance chemicals nor a ‘hypoallergenic’ representation on its label
and packaging,” and Kroger’s “copycat” sensitive skin bodywash—marketed as
comparable to Dove’s—declines to claim it is “hypoallergenic” anywhere on its
front label.

On standing, plaintiffs properly pled a price premium theory
of economic injury. Plaintiffs identified two cheaper comparators: Dove’s own
non-hypoallergenic Sensitive Skin Body Bar and the Kroger Copycat explicitly as
a “compare to” alternative.  “A store
brand marketed as the cheaper equivalent is, almost by definition, a
comparable, cheaper product.” Plaintiffs didn’t need to specify the exact value
of their economic injury at the pleading stage.

In addition, “hypoallergenic” etc. was plausibly misleading.
The court found the relevant state consumer protection laws to apply “substantially
the same” standards, though they “diverge in how much a plaintiff must show at
the pleading stage”:

At the pleading stage, the NYGBL
and the CA Consumer Laws both require allegations that “a significant portion
of the general consuming public or of targeted consumers, acting reasonably in
the circumstances, could be misled.” But unlike the NYGBL and the CA Consumer
Laws, the NJCFA treats “capacity to mislead” as the “prime ingredient” of
consumer fraud and does not have the “significant portion” requirement.

Necessarily, a claim that survives under NY/CA misleadingness
would survive under NJ law as well.

Unilever alleged that “hypoallergenic” couldn’t mislead
anyone because the word is inherently relative and “not an objective guidance
about the specific amount of any ingredient in a product.” The prefix “hypo-”
means “less than,” not “zero.” The court disagreed that this prevented
reasonable consumers from being deceived. Plaintiffs plausibly alleged that:

“hypoallergenic” and “sensitive
skin” communicate to reasonable consumers that the Product: (a) is not itself a
skin sensitizer; (b) will not cause irritation, corrosion, or contact
dermatitis when used as directed by intended users; (c) does not contain
significant amounts of ingredients known to cause such reactions in intended
users; and (d) does not contain sensitizers in amounts reasonably expected to
induce allergic responses in significant numbers of intended users or
sensitized individuals.

That the FDA has declined to define “hypoallergenic” and
lets companies decide its meaning was not dispositive. “Unilever’s authorities
do not coalesce around a common definition of ‘hypoallergenic.’ That is the
hallmark of an ambiguous term—not a settled one.” The court declined to decide
on a meaning at this stage.

In addition, “labeling could also be ambiguous if consumers
would not understand the label’s representations at face value.” This is the
newly emerging consumer protection law meaning of ambiguity: “[A product’s]
front label is not ambiguous simply because it is susceptible to two possible
meanings; a front label is ambiguous when reasonable consumers would necessarily
require more information before reasonably concluding that the label is making
a particular representation” (emphasis added). This is the ambiguity “that
governs whether a court may look past the front label to the back. The front
label here makes a definite representation that the Product is suited for
sensitive skin and, as hypoallergenic, will not provoke the reactions that
non-hypoallergenic products may.”

The complaint also sufficiently pled that this was in fact
misleading. It identified a recognized scientific and regulatory
threshold—0.1%—above which a sensitizing ingredient is classified as a skin
sensitizer. Citing Unilever’s own Safety Data Sheet, it alleged that the product
contains cocamidopropyl betaine, the American Contact Dermatitis Society’s
“Allergen of the Year” in 2004, at a concentration of 1 to 10%. Plaintiffs also
alleged the presence of five other skin sensitizers, including fragrance
chemicals, which are allegedly a leading cause of allergic contact dermatitis
according to the American Academy of Dermatology. Other ingredients—citric
acid, glycerin, and sodium benzoate—were allegedly recognized or classified as
skin sensitizers shown to cause allergic reactions on contact, and several were
classified as skin and eye irritants.

Plaintiffs didn’t need to allege laboratory testing under
these circumstances, including that the product was “a mass-produced,
fixed-formula body wash.”

The presence of Amazon consumer reviews reporting reactions
also mattered, though the court considered them not for their truth or as
evidence of how the public understands the term “hypoallergenic.”  Although 87% of reviews submitted by Unilever gave
the product five stars, that proved little. “That most buyers are satisfied
does not establish, as a matter of law, that the label does not mislead people
with sensitive skin—the actual consumers whom the ‘significant portion of …
targeted consumers’ standard exists to protect. Consumer fraud could still be
plausible despite high product satisfaction” (citing Lanham Act cases accepting
15% and lower confusion).

Nor did the back label, even if consulted, cure the front’s
alleged misrepresentation. Here, “reasonable consumers would not require more
information before reasonably concluding that the front label [of the Product]
was making a specific representation.” “And importantly, requiring a consumer
to know the ‘properties, origins, and effects on the skin’ of each listed
ingredient in the Product’s back label is ‘plainly untenable.’” The court believed
that each of the relevant jurisdictions would so hold (as do I).

Nor were plaintiffs required to allege that they suffered
allergic reactions as a result; that wasn’t their theory of deception/harm.

The court then kicked out NJCFA omission claims, but not
NJCFA affirmative misrepresentation claims. “To establish an act of omission
under the NJCFA, ‘plaintiff must show that defendant (1) knowingly concealed
(2) a material fact (3) with the intention that plaintiff rely upon the
concealment.’ ” Intent can be alleged generally but must still be plausible.

Plaintiffs alleged that Unilever had knowledge because of:
(1) Unilever’s website; (2) the Product’s Safety Data Sheet; and (3) negative
reviews posted to the “Dove store” on Amazon. While Unilever’s website acknowledges
that “a selection of ingredients used in fragrances have the potential to cause
skin allergies in some individuals,” it explains that Unilever discloses its
fragrance ingredients “for transparency and to help you make informed choices.”
“That statement is candor, not knowledge of falsity or concealment.”

Likewise, the Safety Data Sheet’s statement about chemical
concentration was not knowledge of its alleged falsity. “A manufacturer that
reasonably reads ‘hypoallergenic’ to mean ‘less’ would not knowingly conceal
the alleged misrepresentation by selling the product. And the negative reviews
didn’t provide knowledge because plaintiffs never alleged that “Unilever
operates the Dove store, monitors Amazon, or receives notice of those reviews.”
More generally, “Internet postings, standing alone, do not impute knowledge to
the manufacturer without facts indicating that the manufacturer ‘viewed or
would have viewed those websites’ or ‘monitored third-party website complaints.’”
Pleading monitoring or reporting lines, cy contrast, can support an inference
of knowledge.

New York statutory claims survived. California
UCL & FAL claims failed, though a CLRA claim survived, because the
remedies for the first two are equitable and plaintiffs didn’t plead that they
lacked an adequate remedy at law.

The implied warranty claim survived in California and New
Jersey; even though it could clean the skin, it was plausibly unfit for ordinary
use because it couldn’t be used for the “purpose of being a body wash suitable
for sensitive skin,” which was the purpose for which it was sold. After all,
just “because a car can be driven does not mean it is merchantable.” Express
warranty claims survived in all jurisdictions.

Unjust enrichment survived, but not common-law fraud and
fraudulent concealment, given the failings on scienter above.

from Blogger https://tushnet.blogspot.com/2026/07/hypoallergenic-plausibly-means-free-of.html

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INTA report on AI and likely confusion analysis

Posted on June 29, 2026 by rtushnet

 INTA’s press release is here. INTA was kind enough to invite me to the launch as press. I’m still digesting overall but the most interesting comment was about consistency: One panelist suggested that AI’s effect on this “hobgoblin of small minds” (my reference, not theirs) could be more about public perception than actual outcomes. Right now lots of people complain about trademark office inconsistency, at least when they get an adverse decision. Because there’s no truly objective metric for what’s right, or even what’s consistent, the well-known biasing effects of having a machine involved could absorb criticism or even refute it. (Accepting blame as a service?) Another possibility the panelist raised was that AI/machine learning in the USPTO could actually ignore nonprecedential opinions, as humans don’t. 

from Blogger https://tushnet.blogspot.com/2026/06/inta-report-on-ai-and-likely-confusion.html

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Reading List: Jessica Litman, Casting Aspersions

Posted on June 26, 2026 by rtushnet

Read it now. Short, readable, and recommended: “If the politics of reforming copyright law to pay more attention to whether and how much … money finds its way into authors’ pockets seems too daunting to try, that says a great deal about the health of the current copyright law, and of the copyright bar.”

from Blogger https://tushnet.blogspot.com/2026/06/reading-list-jessica-litman-casting.html

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Amicus in 5th Circuit age verification/app store case

Posted on June 24, 2026 by rtushnet

 On behalf of the Organization for Transformative Works and the Wikimedia Foundation, Inc. The brief emphasizes the breadth of noncommercial speech affected by Texas’s app store rating, age verification, and parental consent requirements. 

from Blogger https://tushnet.blogspot.com/2026/06/amicus-in-5th-circuit-age.html

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