Ledesma v. Hismile, Inc., 2026 WL 1146742, No.
24-cv-03626-KAW (N.D. Cal. Apr. 28, 2026)

Previously.
Here, the plaintiffs provide enough allegations about the challenged
teeth-whitening ad campaign to satisfy the court as to Rule 9 in the context of
algorithmically generated ads, but still lose on puffery grounds. In essence,
defendants allegedly exaggerated the teeth-whitening capabilities of their
products through various means, such as unnaturally bright lighting and models
who already have very white teeth, fake reviews, fake customer videos, claims
of clinical proof, and claims of “color correction technology: purple and
yellow are complementary colors opposite to each other on the color wheel, so
purple ‘cancels out yellow undertones’ to reveal white teeth instantly.”

Plaintiffs alleged that there were thousands of ads posted
on defendants’ social media accounts using the same core advertising methods,
and that many advertisements “reus[e] the exact same clips in a different
order, or with different actors reading similar scripts and acting out similar
scenarios.” They brought California
and NY claims.

Defendants argued that plaintiffs failed to identify the
specific advertisements that they saw. But “California courts have recognized
an exception to the requirement that a plaintiff identify the specific
advertisement they relied upon ‘where a claim of fraud is based upon a
long-term advertising campaign, which may seek to persuade by cumulative impact,
not by a particular representation on a particular date.’ ”

The exception was satisfied here, where plaintiffs alleged
that the ad campaign began more than ten years ago and saturates social media
user feeds with videos, many of which reuse the same clips in different orders
or with different actors reading similar scripts or acting out similar
scenarios, all touting “the same false core message: that Hismile’s Products
deliver ‘instant teeth whitening’ results.” Plaintiffs also sufficiently
alleged their own individual exposure to this advertising campaign, including
when and/or how long they saw the advertisements, what social media platforms
they saw the advertisements on, more specific examples of the types of
advertisements they saw, and the effect of those advertisements on Plaintiffs’
perception of the product — namely, that the products “would produce an
instant whitening effect.” That sufficed under Rule 9(b) to identify the who
(Defendants), what (the advertising campaign and the types of advertisements
viewed by Plaintiffs), when (the length of the advertising campaign and
approximately when Plaintiffs were exposed to it), where (the social media
platforms Plaintiffs viewed the ads on), and how (the allegedly false claim
spread by the advertising campaign that Defendants’ products “instantly” whiten
teeth).

Defendants argued that plaintiffs should have identified specific
ads because they were still “readily accessible” on defendants’ social media. “But
this argument only highlights the difficulty of identifying the specific
advertisement; as Plaintiff points out, Defendant Hismile’s TikTok account
posts at a rate of 15 or more videos a day, which results in over 1,000 videos
in the span of 67 days. …To require that a plaintiff comb through hundreds to
thousands of similar videos advertisements (assuming the viewed advertisement
is still available) imposes a potentially insurmountable burden.” The court
wouldn’t insulate high-volume social media advertising from scrutiny.

However, plaintiffs didn’t sufficiently identify the
allegedly false/misleading influencers and customer reviews upon which they
relied.

However, the case still had to be dismissed because “instant”
whitening was puffery. (What about the clinical proof claim, above?) “Instant”
wasn’t a quantifiable statement, but a general, subjective claim. Nor could
plaintiffs use the duration of ads/demos during ads to show that defendants
gave a definition to “instant.” That wasn’t a “binary and precise” criterion. “At
what point in time would ‘instant’ no longer be an accurate description?” After
all, “many things are advertised as ‘instant’ — instant noodles, instant
oatmeal, instant film, instant stain remover — that are not literally instant
but can take several minutes even if they are significantly faster than their
non-instant counterparts.”

from Blogger https://tushnet.blogspot.com/2026/05/mix-and-match-ad-campaign-actionable.html

Zaimi v. Costco Wholesale Corp., 2026 WL 1145798, No.
2:25-cv-01076-JHC (W.D. Wash. Apr. 28, 2026)

The court refused to dismiss statutory and common-law claims
related to price differences between items that Costco sells online and
in-store: online, Costco charges more for big-ticket items like couches to
cover shipping, but advertises “free shipping.”  For example, one couch is available for
$2,099.99 when bought in a physical Costco store but costs $2,399.99 when
purchased online, and at checkout, “Shipping & Handling” is listed as
“$0.00.” Within the online listing, in light grey font, Costco says that
“Delivery, setup and packing removal [are] included,” and that “Items may be
available in your local warehouse, prices may vary.” Also, there’s a webpage
that says “Costco.com prices take into account shipping and handling fees not
applicable to warehouse purchases,” but plaintiff alleged that “she was not
presented with, and did not read, the fine print on Defendant’s customer
service webpage admitting that those representations were false.” She brought
claims under the Washington Consumer Protection Act (CPA) and California’s FAL,
UCL, and CLRA, along with claims for breach of contract, breach of
warranty, quasi-contract/unjust enrichment, and negligent and intentional
misrepresentation, which the court declined to dismiss. I won’t discuss many of
the details.

Costco argued that it disclosed the price differences and
shipping costs. Online, the listing states that “[d]elivery, setup, and
packaging removal included” in the stated price, and elsewhere on the website, it
discloses that items are cheaper if bought in-store. Thus, believing that one
would pay the same for the couch online as in the warehouse and pay nothing to
have it delivered was patently unreasonable.

Zaimi rejoined that the checkout page statement, “Shipping
& Handling $0.00,” induces reasonable consumers into believing they are
paying $0.00 for shipping, and that general disclaimers (that items are
available at a lower price in its warehouses) do not “negate the clear message
that ‘Shipping & Handling $0.00’ conveys to reasonable consumers.” The
court found no previous case to be entirely on point, but, at the motion to
dismiss stage, this theory was plausible. The online listing didn’t state that
the prices will be lower in-store: It states that the “prices may vary.” And
plaintiff plausibly alleged that consumers “expect free shipping,” given the
ubiquity of online shopping, even for large purchases like furniture.  

As for injury under Washington consumer protection law, it
was enough to allege that she “would not have made the online purchase if she
had known that she was paying for shipping or that Defendant charged more for
the product online.”

from Blogger https://tushnet.blogspot.com/2026/05/costcos-free-shipping-claims-plausibly.html

Cody v. Gainful Health Inc., 2026 WL 1428888, No. EDCV
25-01373-KK-SPx (C.D. Cal. May 19, 2026)

Gainful sells protein powder nutritional supplement products;
plaintiff alleged unlawful slack fill. Cody bought a “28 Servings” package that
“included two pouches or bags,” each weighing 14.8 ounces and “contain[ing] 14
servings per container,” and 28 “Flavor Boost” packets. Each pouch was “opaque”
and did “not allow the customer to fully view its contents.” The nutrition
label on the back of each pouch indicated a serving size of “1 scoop (30 g).” She
saw the image online, which “depicted a totally opaque Product container that
did not allow Plaintiff … to see the fill level within such container.” The
image also showed the “Flavor Boost” packets, “which indicated the far greater
size of the Product’s container by comparison.” The Amazon product listing
disclosed 28 servings, weight of 30 ounces, and package dimensions of 10.47 by
9.92 by 4.76 inches. But it did “not disclose any … disclaimer such as a
reference to a fill line or other caveat disclosing that the Product’s
container was not packaged to be substantially full of protein powder.”

The court found the claims sufficiently pled under the relevant
California statutes and common-law fraud. Cody sufficiently alleged an
affirmative misrepresentation by using an opaque and “oversized” container,
“which implied … that the container had more protein powder than it actually
contained,” and failure to disclose the non-functional slack fill in violation
of California law.

“Because a consumer viewing the Product listing on
Defendant’s online storefront has no ‘reasonable opportunity prior to purchase
to shake or otherwise manipulate’ the Product to determine whether the
Product’s packaging ‘is filled to the brim,’ they “may reasonably rely on the
size of the packaging and believe that it accurately reflects the amount [they
are] purchasing.’” Here, the packaging as depicted on the online storefront
conceals that the “actual product only occupies approximately 60 [percent] of
the exterior space represented by the Product’s packaging container.”

What about the quantity disclosures that did exist? First,
it was unclear whether the listing included the back label, making any
information on that label “irrelevant to determining whether a reasonable
consumer is likely to be deceived.” Listing dimensions, weight, and number of
servings “do[ ] not necessarily provide the reasonable consumer a meaningful
metric for how much powder is in the container,” as a reasonable consumer is
“not necessarily aware” of how a product’s weight and number of servings
“correlate[ ] to the product’s size.”

Even if Cody saw the back label, deception was still plausible.
Gainful cited several cases finding “no reasonable consumer would be plausibly
deceived” where a package “provide[s] a consumer with a ‘rough estimate’ of the
amount of final product that can be made from its contents.” But each of those
cases “involved products that were discrete, countable goods, the number of
which were disclosed on the label.” The instructions on the back label did not
indicate how much protein powder a consumer should mix with 8 oz of milk or
plant-based milk or blend with 8 oz of the consumer’s “favorite beverage.” Nor
did the instructions indicate how much “Flavor Boost” a consumer should mix
with milk, blend into a smoothie, or add into a baked good. While the back
label suggested a consumer could “[a]dd a scoop” of the Product to their
“favorite baked good recipe,” it didn’t specify the type or amount of baked
goods to which a scoop of the Product should be added. Without that, a “scoop”
of protein powder “is not an intrinsically meaningful metric of quantity,” even
when “the consumer can calculate the approximate weight of each scoop.” As
another court said: “A label that states a cannister contains 20 scoops of
protein powder communicates materially less information to a consumer than a
label stating that a cannister contains 20 cookies.”

She also sufficiently alleged that the slack fill was
nonfunctional. It sufficed to allege that (1) “[t]here is no risk of the powder
breaking or sustaining damage if there was less empty space in the Product’s
container,” (2) “the machines used for enclosing the contents of the package
have the capacity to add more content to the containers used to enclose the
contents of the Product,” and “[a]t most, a simple recalibration of the
machines would be required,” (3) “any settling” of the Product “occurs
immediately at the point of fill” because of “the Product’s density, shape, and
composition,” (4) the Product’s packaging “contains no instructions to
consumers that they should mix together the Product’s whey protein powder with
any Flavor Boost within the Product’s pouch container,” (5) “[t]he package is
intended to be discarded immediately after the Product is consumed” and is not
a “durable commemorative package” or “promotional package,” and (6) “Defendant
can easily increase the quantity of the Product in each package (or,
alternatively, decrease the size of the packages) significantly.” These plausibly
alleged that none of the safe harbor provisions in California’s slack fill law applied.

from Blogger https://tushnet.blogspot.com/2026/05/slack-fill-claims-proceed-because.html