Rebecca Tushnet

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

Simpson v. Walgreen Co., — F.Supp.3d —-, 2026 WL 413565,
No. 23-cv-16465 (N.D. Ill. Feb. 13, 2026)

Simpson bought Walgreens’ Complete Home Heavy Duty (Complete
Home) plastic cutlery. The front and back of the product were labeled
“DISHWASHER SAFE” and “HEAVY DUTY” in all caps. The sides of the product were
also labeled “HEAVY DUTY.” Simpson allegedly bought the product in part because
she believed it was dishwasher safe, which means something different than
“top-rack-only” dishwasher safe. “As it turns out, the bottom of the Complete
Home box cautions: ‘DISHWASHER SAFE IF CLEANED ON THE TOP RACK.’” She didn’t
turn the box over (a move likely to dump all the utensils out if the box has
been opened already) and suffered the consequences. Simpson also alleged that “it
is common practice in the plastic dish industry to clearly indicate when a
product can only be washed safely on the top rack” and that the commonly used
“dishwasher safe” symbols are distinct from the “top rack only” symbols. These
labels are allegedly “particularly important for cutlery, because a
dishwasher’s cutlery basket is ordinarily located on the bottom rack.”

front and bottom of box

She brought the
usual California claims on behalf of a California subclass, as well as state
law claims of common law fraud, unjust enrichment, intentional
misrepresentation, and negligent misrepresentation.

The court refused to dismiss the claims because deception
was plausible.

Walgreens argued that, under McGinity v. Procter &
Gamble Co., 69 F.4th 1093 (9th Cir. 2023), when a label is merely ambiguous, it
is not misleading, and a reasonable consumer would check the bottom of the box
for more details. The packaging for the plastic cutlery, it argued, clarifies
any potential ambiguity with term “dishwasher safe” by adding in all caps the
statement “dishwasher safe if cleaned on the top rack.” Simpson responded that
“disclosures that are not on the consumer-facing front label do not cure
misleading front-label representation because a reasonable consumer is ‘not
expected to look beyond misleading representations on the front of the box to
discover the truth in fine print on the back label.’ ”

I’ve been thinking about the consumer protection concept of
ambiguity that courts seem to be leaning into, and how it differs from Lanham
Act ambiguity, and I think that the consumer protection concept is distinct
(and probably wrongheaded) in folding materiality into the ambiguity inquiry.
Here’s my current thesis, subject to revision:

In consumer protection cases, courts seem to be asking
whether a substantial number of reasonable consumers could think that their
questions were answered by the front matter, and thus not look further. By
contrast, in Lanham Act cases courts find ambiguity when at least one
reasonable interpretation is true, or nonactionable puffery. So, if courts frame
the consumer protection concept as “if one reasonable interpretation of the
front matter is that the consumer’s questions were answered but that answer would
be false, then deception is plausible,” there may not be much, if any, daylight
between the two standards, and I think that’s the right treatment.

The difficulty is that the facts of Trader
Joe’s, which the Ninth Circuit used to announce its consumer protection
ambiguity standard, are so extreme about what “reasonable” consumers are
supposed to know. It seemed that, in Trader Joe’s, the materiality of
manuka honey’s supposed qualities was used to heighten the degree of care
exercised by reasonable consumers. That is, if you care about it, you’re
supposed to read more about it. But that move conflates epistemology (how do
you learn what features a product promises?) with value. Thus, the reason the
consumer protection version of ambiguity seems more stringent than the Lanham
Act version is stealth importation of a heightened consumer care standard. One
way for plaintiffs’ lawyers to proceed, it seems to me, is to specifically
allege that, regardless of what we think a careful consumer should do, consumers
who do care about product features often make judgments about those features
based on the front label, because reasonable consumers don’t think about the details
of everything they care about. That would be an exhausting and impossible way
to move through the world! Alleging facts about standard practices, as the
plaintiff did here, is one way to do make that conclusion more plausible.

The court agreed that McGinty didn’t apply because
there, it was clear that the phrase “Nature Fusion” was ambiguous. But “dishwasher
safe” was not ambiguous in the same way. Since McGinty, other 9^th
Circuit cases have come closer to my proposed  “if one reasonable interpretation of the front
matter is that the consumer’s questions were answered but that answer would be
false, then deception is plausible” standard. E.g., Whiteside
v. Kimberly Clark Corp., 108 F.4th 771 (9th Cir. 2024), found that “
‘Plant-based” on the front of a package was plausibly misleading even though
the back of their packaging disclosed the presence of synthetic ingredients.

“Plaintiff plausibly alleges that the front label of the
Complete Home plastic cutlery is unambiguously deceptive to a reasonable
consumer.” I wish the court hadn’t used the word “unambiguously” here, because
that risks conflating “no reasonable consumer would think otherwise” with “a
substantial number of reasonable consumers would receive this message,” and it’s
the latter that sets the standard. Reasonable consumers can vary in the amount
of thought they give to a given purchase, and that’s why we use the “substantial
number” standard: so that we’re not only protecting the most careful subset of consumers.

Anyway, it was plausible that a reasonable consumer “would
look at a box of ‘heavy duty’ plastic cutlery labeled as ‘dishwasher safe’ on
the front and take it at its word.” Whether there was actual ambiguity was for
later (again, worrisome language—the court cites the correct standard, which is
whether there was deceptiveness).

[Other issues omitted, including the dismissal of claims for
injunctive relief on standing grounds.]

from Blogger https://tushnet.blogspot.com/2026/06/dishwasher-safe-wasnt-too-ambiguous-to.html

Noriega v. Abbott Labs., 2026 WL 1601501, No. 23 Civ. 4014
(PAE) (S.D.N.Y. Jun. 4, 2026)

Conventional wisdom is that certification is the ballgame
for consumer class actions, but it might be empirically mistaken. This case is
an example where there’s plenty more litigation ahead. Noriega alleged that the
packaging and marketing of PediaSure Grow & Gain misled consumers when it
claimed to be “Clinically Proven to Help Kids Grow” in violation of New York
General Business Law (“GBL”) §§ 349 and 350.

The court denied summary judgment to Abbott and resolved a
bunch of evidentiary objections.

There’s a disclaimer on the label: an asterisk, dagger, or
other note of the form: “Clinically Proven† to Help Kids Grow.” The disclaimer
has at various times read: “Studied in children at risk for malnutrition”;
“Studied in children at risk for malnutrition, 2 servings per day,” or “Studied
in children with and/or at risk for undernutrition, 2 servings per day.” It appeared
in different colors, sometimes set against a background of the same color, and
other times against a contrasting background.

The label also shows a cartoon giraffe wearing sunglasses,
next to tick marks that resemble a ruler. Under the PediaSure name, the label
states, “Grow & Gain,” and below that, “With Immune Support.” he label
contains circles touting a product attribute, such as “27 Vitamins &
Minerals,” “7g Protein,” and “#1 Pediatrician Recommended Brand.”

Earlier versions displayed an image of a lion. And instead
of the challenged statement, the label read, “Helps Kids Grow.” At least 2 TV
ads also used the challenged statement, including a “worried mom commercial”
depicting a child who is shorter than the children next to him, and who stands
on his tiptoes to appear taller. The voice of a mother states: “Before
PediaSure, I was concerned that he was behind in growth.” She states that her
child’s pediatrician told her to try PediaSure, and that “it’s clinically
proven to help kids grow.” The commercial displays the word, “GROWTH,” above an
image of a child standing next to tick marks. A second ad depicts a child
standing between two taller children, who states that his mother was “concerned
about my growth,” as the commercial depicts a mother measuring the child’s
height against a doorframe. The child states that his mother tried PediaSure
because it is “clinically proven to help kids grow.”

The PediaSure product page of Abbott’s website lists six
published studies, and Abbott completed data collection in another study in
late 2024, after the filing of this lawsuit. Whereas Abbott’s earlier studies
had largely been conducted on children outside of the United States (e.g., the
Philippines, Taiwan, Pakistan and Peru), the new study, AL-48, studied the
effects of PediaSure in children in the United States.

Plaintiff’s experts: First there was marketing expert Dr.
Gita Johar, whose report assessed how consumers would understand the challenged
statement. Her methodology: review academic literature related to consumer
marketing claims, and whether and when consumers can understand disclosures
that purport to modify or limit such claims; review the Complaint and PediaSure
labels and television commercials; then assess, in light of the academic
literature, how target consumers would process the text and imagery on the
PediaSure bottle, whether consumers would notice and understand the footnote
disclaimer, and what reasonable consumers are likely to believe about
PediaSure.

She opined that the PediaSure label would lead consumers to
believe that the product is clinically proven to help kids grow tall and that
the footnote disclaimer is “unlikely to be noticed, read, [or] understood.” She
also opined that this was materially misleading, as clinical proof was a “key
benefit” of the marketing.

This opinion was admissible even though Johar didn’t conduct
empirical research or rely on case-specific data collection. Although a
specific survey would have helped, Dr. Johar’s sources and methodology were
reliable for these “uncomplicated” conclusions. Likewise, considering Abbott’s
internal marketing materials might have helped, but only to fortify “her most
central, and unsurprising, conclusion: that PediaSure’s packaging leads
consumers to believe the product is clinically proven to help kids grow in
height.” With extensive experience in consumer product marketing, a lack of
specific expertise in children’s nutrition drinks didn’t matter.

Her testimony would help the jury because she wasn’t setting
out her personal beliefs, as a consumer, about the meaning of the challenged
statement on the label but rather her opinion, “as a marketing professor, based
on her experience and research, about how a reasonable consumer would view and
process the challenged statement in the context of PediaSure’s packaging.”

The court also denied the motion to preclude Dr. Daniel
Hoffman’s expert report on whether Abbott’s studies supply clinical proof that
PediaSure promotes height growth. He’s a professor in the Department of
Nutritional Sciences at Rutgers University whose expertise includes “[s]tunting
and growth retardation,” and “[e]nergy metabolism and body composition.” Id. He
has published journal articles and presented on topics related to children’s
nutrition and growth. He opined that Abbott ignored its internal claims
substantiation guidance manual that addresses health benefit claims, the
evidence necessary to substantiate such claims, and the claims development
process. He further opined that Abbott improperly applied “inapposite studies
from homogenous populations in developing countries” to children in the United
States, failing to conduct “bridging studies” that enable results from one
population to be translated to another.

He also reviewed FTC communications admonishing Abbott about
its practice of using studies from developing countries to support marketing
claims directed to U.S. consumers and internal Abbott communications that
criticized Abbott’s studies, and depositions in which Abbott employees echoed
those concerns.

The heart of his report analyzed the quality of Abbott’s
studies, concluding that they “do not clinically prove or show that PediaSure
helps children grow.” This heart was admissible, though other aspects of his
testimony were inadmissible, including testimony about Abbott’s internal manual
and whether Abbott complied with its own rules; about Abbott’s compliance with
FTC health claims guidance; and how a reasonable consumer would interpret the
challenged statement.

Finally, Dr. Ingersoll’s expert report claimed that the
challenged statement had a price premium. The court excluded the testimony
because he didn’t specifically test Noriega’s theory of liability: the claim
that PediaSure helps kids grow in height. He also did not test the
disclaimer or imagery on the PediaSure label.

The label’s references to growth “can also—or
alternatively—be read to encompass other forms of growth (e.g., weight, body
composition, and/or muscular development),” and he didn’t test height
specifically. “Nor did it test the features which Noriega claims would make a
consumer more likely to understand the challenged statement as referring to
height growth (the giraffe, tick marks, and ‘Grow & Gain’ label). And it
did not test the disclaimer that Abbott claims contextualized the challenged
statement.”

The court commented that “[i]t would not have been difficult
to design a conjoint survey to test this representation. In cases in which a
label was susceptible of multiple meanings, surveys have tested the premium
traceable to the meaning the plaintiff claimed was false or misleading.”

In addition, the disclaimer should have been included, as
proven by Noriega’s own testimony that she construed the challenged statement
to mean there was “scientific proof that this product can actually make a child
grow in height,” and that such proof entailed examining thousands of children
in the United States who had consumed the supplement for “a year or two” and
“grew more than what they should have.” If she’d read the disclaimer, it might
have changed her assumptions and her willingness to pay. “The challenged
statement unavoidably includes a footnote (indicated by a dagger, asterisk,
paragraph symbol, or section symbol, depending on the packaging) that contains
the disclaimer. To be sure, there is no assurance that any particular purchaser
read the footnote—and conceivably a study could have taken into account the
incidence of purchasers who reviewed the footnote relative to those who
overlooked or disregarded it.” But there was no explanation for its omission
from the survey, suggesting “an impermissibly result-driven methodology.”
Noriega could argue at trial that the disclaimer was too small to read and too
confusingly worded. “But that justification, which is absent from Dr.
Ingersoll’s report, does not support Dr. Ingersoll’s excluding the disclaimer
from the survey and failing to engage with it at all in his report…. By
omitting the disclaimer based on its purported ‘inadequacy,’ Dr. Ingersoll
assumed the conclusion that a conjoint survey is meant to prove.”

Noriega argued that including the disclaimer in a conjoint
survey would have improperly elevated it in importance, causing “focalism
bias.” But conjoint surveys can address that, for example by showing one half
of respondents the disclaimer, and the other half the statement without it. “Beyond
that, there presumably were ways—independent of a conjoint survey—to test Dr.
Ingersoll’s premise that consumers would have overlooked or not understood the
footnote disclaimer. Dr. Ingersoll’s untested assertion to this effect does not
bespeak rigorous methodology.”

Abbott’s materiality witness Dr. Kivetz is a marketing
professor at Columbia Business School. In his survey, the test group was shown
a 360-degree interactive image of PediaSure with the challenged statement and
the cartoon giraffe with tick marks (the product as it appeared in stores). The
control group was also shown an image of PediaSure, but without the challenged
statement and the tick marks on the giraffe. Respondents were then asked how
likely they would be to buy the product; if they didn’t say “don’t know,” they
were asked what made them answer the first question as they did; and asked
about “[a]ny other reason or reasons.” Then all respondents were informed about
the typical price range for a package of six bottles of a pediatric nutrition
drink ($7 to $17), and asked to indicate the highest price they would be
willing to pay for the product that they had been shown.

Kivetz concluded that consumers’ purchase intentions were
similar across the test and control groups, in that 88.7% of test group
participants and 90.4% of control group participants answered that they
definitely or probably would buy the PediaSure product that they were shown. He
also found that “the vast majority” of the reasons respondents in the test
group provided for purchasing PediaSure did not relate to the challenged
statement or height growth. He reported that “only 1.9% of participants” in the
test group gave a purchase explanation that could refer to the challenged
statement, and “[n]ot a single test group participant” mentioned height. In the
control group, no respondents provided, as a reason against purchasing
PediaSure, that the product is not clinically proven or does not help with
height growth. Likewise, the average willingness to pay for test group
respondents was $12.94, compared to $12.49 for control group respondents.

Noriega’s criticisms were not so strong as to render this
testimony inadmissible. This study was a between-group study; in a within-group
study, respondents are shown multiple products and asked which they prefer.
Noriega argued that within-group studies “should almost always” be used to
assess materiality, but between-group studies have been used before in the
false advertising context. And speaking of focalism bias, within-group studies
would have it.  

Although more questions could have been asked, it did more
than ask for a top-of-mind response: it asked consumers why they were
definitely/probably likely or unlikely to buy the product, and instructed
respondents to “be specific and include details.” One part of his opinion,
saying that the survey he conducted is “routinely used in academic, industry,
and litigation settings,” and also citing cases that accepted his consumer
surveys and found that they “conclusively showed that the challenged claims
were not material,” was inadmissible.

Abbott’s “clinically proven” expert Dr. Heyman, a professor
in the Department of Pediatrics at UCSF, also offered admissible testimony that
there was “ample clinical support for a claim that PediaSure helps kids grow,
including in both height and weight” based on an in-depth review of Abbott’s
studies. He also admissibly opined that two studies, which Noriega contended
disproved that PediaSure has height growth benefits, “do not undermine or
contradict” clinical support for the challenged statement. The court excluded
his opinion that Noriega’s grandson grew in height and weight while consuming
PediaSure, and that the grandson was not harmed by his consumption of it. The
court also part of his testimony that depended on a study that was not relevant
because it was completed after the time period on which Noriega’s claims are
based (and after the proposed class period).

Once that was done, Noriega survived Abbott’s motion for
summary judgment. Along with the expert testimony, there was other relevant
evidence that the height message was communicated. A rational juror “could find
that PediaSure’s packaging, viewed as a whole, communicates that the product
helps children grow taller.” Though the wording was unspecific as to the type
of growth,

the imagery alongside it supplies a
strong basis, to say the least, on which a reasonable consumer could read
Abbott to make a representation about height growth. The central image on the
bottle is of a cartoon giraffe—the animal well-known as the tallest of all
mammals. The giraffe appears next to vertical tick marks resembling a ruler
that climb to the level of the giraffe’s head. There is no comparable
horizontal imagery. And the words “Grow & Gain” appear in large font below
the brand name. These features could readily support a consumer’s conclusion
that the word “grow” in the challenged statement refers to height growth, with
the word “gain” referring to weight gain.

The same was true of the commercials, which focused on
children shorter than the children around them. The “worried mom” ad displayed
the word “growth” above an image of a child standing alongside vertical tick
marks; and, in the final scene, shows the child (who has begun drinking
PediaSure) reaching up to erase a classroom white board. The “basketball
commercial” ad showed a child standing between two taller children. The child states
that he has “got a lot to look up to” and the commercial depicts the mother
measuring the child’s height against a doorframe.

A jury could also find that Abbott records and employee
deposition testimony support the conclusion that a reasonable consumer would
take away from PediaSure’s packaging and marketing that it promotes height
growth. A 2015 slide deck, which discusses how the giraffe concept performed in
a packaging study, includes these quotes from respondents: “Measuring tape
image makes it clear this product helps with growth,” and “The giraffe is cool
and he’s an example of what the product does for growing.” Abbott’s brand
director of PediaSure also testified that Abbott’s marketing team sought to
“include height within the definition [of growth] to better define the segments
of growth.”

Likewise, there were genuine issues of fact on the truth of
the height claims. A “rational juror here could find that the deficiencies
identified by Dr. Hoffman are so basic and devastating that Abbott’s studies
cannot credibly be claimed to constitute clinical proof of the challenged
statement.” That juror could agree that establishing that PediaSure promotes
height growth in a malnourished child in a developing country “says absolutely
nothing about whether it does the same for a healthy New York City child with a
sound diet.” “The Court is unpersuaded by Abbott’s suggestion that the nominal
existence of a study, even one that could be found wholly inapposite to the
proposition at hand, inherently defeats a challenge to a claim of clinical
proof.”

A rational jury could also find that the footnote disclaimer
here was ineffective, relying either on Dr. Johar’s testimony or by “examining
the packaging for him or herself,” noting that “the challenged statement and
disclaimer are on opposite sides of the giraffe and that the challenged
statement is larger and more prominent than the disclaimer,” and/or finding
that the disclaimer didn’t address height specifically or explain the
implications of the study feature (“studied in children at risk of malnutrition”)
that it briefly discloses.

Invoking the Lanham Act standard, “Abbott suggests that,
because the challenged statement is impliedly (rather than literally) false,
Noriega is required to come forward with extrinsic evidence that the challenged
statement would mislead consumers.” This isn’t a Lanham Act case, and “GBL §§
349 and 350 do not have an extrinsic evidence requirement.” [Conceptually, this
difference is hard to defend since the core concept, deceptiveness, is the same
for consumers and competitors, both of whom are only harmed when consumers are
deceived, but the real problem is the Lanham Act survey requirement so I’m
certainly not saddened by the court refusing to port it over.] Given the
giraffe and the ruler, this wasn’t a case where a jury would need extrinsic
evidence to determine what message was received.

And there was a material disputed issue on materiality,
including Dr. Johar’s report. Abbott’s internal documents also included an
online survey of more than 500 mothers, which tested the statements that made
respondents most likely to purchase PediaSure; the challenged statement ranked
third out of 13 options. A 2024 marketing presentation stated that, in 2019,
“height households had significant buy rate growth,” and that the fourth most
popular reason consumers purchased PediaSure was that to “help child grow.”  Abbott’s documents also included statements
that 51% of respondents want to buy products that “help my child grow in
height” and that 20% of respondents give children PediaSure to help “grow in
height.” [This may well be why we shouldn’t give much weight to anybody’s
surveys on materiality or what message was communicated—the fact that Abbott
was easily able to figure out a methodology that would give it the opposite
result when it had a very strong interest in so “showing” suggests either that
Abbott’s marketing department is very bad at its one job or that, for business
decision-making purposes, the claim is material.] Abbott weakly argued that its
internal records didn’t “literally” show that height was a reason for purchase,
but they certainly tended to make that conclusion more likely.

Kivetz’s immateriality study, while admissible, was not
dispositive given the other admissible evidence.

What about injury? There was sufficient evidence to survive
summary judgment on one theory of injury: a benefit-of-the-bargain theory.
Noriega testified that $3.25—the cost she claims to have paid per bottle—is “a
lot to pay for something,” and that she understood PediaSure to cost more money
on account of its capacity to improve height. She testified that she believed
that she was “paying more” for the prospect of height benefits and that she
would not have bought PediaSure had the challenged statement not been on the
label. This could show detrimental reliance, but not on a price premium theory.

Good thing statutory damages are available!

from Blogger https://tushnet.blogspot.com/2026/06/pediasure-growth-claims-might.html