Rebecca Tushnet

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

Dwarakanath v. Priyanka, — F.Supp.3d —-, 2026 WL 1215667,
No. 5:25-cv-06465-PCP (N.D. Cal. May 4, 2026)

Dwarakanath sued Vaidyaji Priyanka (VP), AUM Ayurveda (AUM),
and some Does, alleging among other things false advertising. VP allegedly ran
a cult and encouraged Dwarakanath’s daughters and then-wife to file frivolous
domestic violence restraining order applications against him. Although he was
granted custody, his now-ex-wife allegedly violated multiple court orders by
retaining improper custody of the girls and refusing to deliver them to him, encouraged
by VP.

The court allowed UCL
claims to proceed under all three UCL prongs, alleging unlawfulness from violation
of RICO and various fraud statutes, unfairness because defendants caused him to
both relinquish his parental control over his young daughters and pay for
unnecessary medical care, and fraudulence because defendants’ untrue and
misleading representations about their holistic care practices allegedly deceived
him and other members of the public.

Although an earlier false advertising claim failed because plaintiff
didn’t allege misrepresentations that were directed to the public rather than
to just one individual, the UCL provides standing to people injured by
prohibited practices, as alleged here.

Nor did defendants identify specific statements that were
nonactionable puffery. Several of the statements Dwarakanath pled were
sufficiently specific to preclude a finding of nonactionable puffery.

For example, VP claims to have
“multiple degrees in business, medicine, and Ayurvedic medicine, from
prestigious institutions like Kings College in London and Columbia University,”
and yet allegedly lacks any relevant degree or other qualifications to be a
medical doctor. She claims to be in her mid-sixties and has two young children,
which she offers as evidence that she “has magical powers that can preserve
youth and fertility.” She claims she can cure manic depression, bipolar
disorder, and schizophrenia using herbal treatments and prayer. And she claims
that she cured [plaintiff’s ex-wife] of cancer three separate times through
“healing” massages.

These statements were specific enough: they clearly
identified “an illness or health issue (schizophrenia, fertility troubles,
cancer) and a promise to cure them,” and claims to be a licensed medical professional
were also not puffery. “Defendants might have been more successful if they had
argued that it was unreasonable to rely on certain statements, like the claim
that VP could cure fertility troubles because of her ‘magical powers,’” but
didn’t raise that—and the FTC at least thinks that targeting vulnerable people
with magical claims can be deceptive. Historically, courts have not found the
First Amendment to be a barrier to fraud claims against healers who solicited
money from sick people to heal them through mystical or magical powers. I don’t
know whether that pattern would continue today in our fraud-forward economy.

from Blogger https://tushnet.blogspot.com/2026/05/plaintiff-can-use-ucl-against-healer.html

Castro v. Abbott Laboratories, Inc., — F.Supp.3d —-,
2026 WL 184533, No. 25 CV 377 (N.D. Ill. Jan. 23, 2026)

Abbott makes Similac, a milk-based formula powder drink for
infants and toddlers. “Go & Grow Toddler Drink by Similac” and “Pure Bliss
Toddler Drink by Similac” purport to meet the nutritional needs of children
between the ages of twelve and thirty-six months. The labels were allegedly
similar to the labels for infant drink formula and indicate that toddler drinks
are the next step drink following infant formula. Plaintiffs sought to
represent consumers from Illinois, Massachusetts, Florida, Michigan, Minnesota,
Missouri, New Jersey, New York, and Washington.

The toddler drink cans’ similarities to the infant drink
cans allegedly falsely represent “that the toddler drink is the logical next
nutritional step in formula, even when doctors and experts do not necessarily
recommend toddler formula drinks.” The labels were also allegedly false and
misleading “because they focus on the products’ purported health benefits while
omitting information regarding the health harms of their added sugar content.”

The toddler formula label includes the words “Stage 3,” and
that label is visually similar to the infant formula label containing the words
“Stage 1” and “Stage 2.” Abbott argued that a reasonable consumer would not
ascribe the “next stage” meaning to the label because the similarity of the
labels and the words “Stage 3” are not nutritional recommendations.  The court disagreed, given the pleading stage.
“Stage” can plausibly indicate a progression. “And the similarity of the cans,
as well as their placement on the same shelves as the infant formula, could
lead a reasonable consumer to conclude that the toddler formula is
nutritionally recommended for children aged twelve to thirty-six months in the same
way that infant formula is nutritionally recommended for children up to twelve
months.”

The court distinguished Martelli v. Rite Aid Corp., No.
21-CV-10079 (PMH), 2023 WL 2058620 (S.D.N.Y. Feb. 16, 2023), which dismissed a
similar claim, but there the label also included a disclaimer stating that the
product was “intended to supplement the solid-food portion of the older baby’s
diet” and was “not intended to replace breast milk or starter formulas.” Whether
the disclaimer made a difference was an issue for later.

Additionally, plaintiffs alleged that Abbott’s representations
about the health benefits of the drink were misleading because the formula
contains four grams of added sugars, which are decidedly unhealthy. The cans
did disclose their sugar content on the back labels, but again it was plausible
that a reasonable consumer could think they didn’t have to consult the back.

This reasoning also allowed a claim for breach of the
implied warranty of merchantability: plaintiffs alleged that “a balanced,
nutritious diet excludes sugar-sweetened beverages for children above 12
months, and otherwise limits added sugar to less than 5% of calories, whereas
regular consumption of the Toddler Drinks is detrimental, rather than
beneficial to health.” They sufficiently alleged that the toddler formula is
not “fit for the ordinary purposes for which such goods are used,” namely, to
provide a healthy supplement to a toddler’s nutrition.

from Blogger https://tushnet.blogspot.com/2026/05/toddler-drink-plausibly-misleads-about.html

Cavallaro-Kearins v. Grüns Nutrition Inc., 2026 WL 1398422,
No. 25-cv-4998 (LJL) (S.D.N.Y. May 19, 2026)

The court dismissed this California & New York false
advertising claim against Grüns based on its Superfood Greens Gummies for
Adults and Grüns Cubs for Kids, challenging its claims to offer a
“comprehensive” and “complete” solution for daily nutrition, to provide “100%
of kids’ daily nutrition,” “all-in-one” support for GLP-1 users, and to act as
a replacement for essential nutrients. In this specific context, these claims
were unbelievable and demanded reference to the ingredient list, which would
clarify matters. Grüns also advertised Grüns Adults as containing “more fiber
than 2 cups of broccoli per pack,” the same amount as “9 cups of raw spinach,”
and as containing more than 6 grams of fiber, stating that “you’d need a whole
salad bar to match the fiber in just one pack of Grüns.” Grüns Kids also
claimed it was the “very best way to get all the vitamins, minerals, fruits and
veggies growing kids … need” and specifically targeted parents of children with
sensory processing difficulties.

But protein, fats, and omega-3 fatty acids are necessary
nutrients that aren’t included. Also, the Gummies “contain only minimal amounts
of other key minerals like iron and lack others such as calcium altogether.”
And the daily recommended amount of fiber for an adult is 28 grams of soluble
and insoluble fiber per day, whereas Grüns contain only six grams of “soluble
fiber”; the fiber contained in real fruits and vegetables is allegedly
fundamentally different from that contained in Grüns, which “may aggravate
rather than relieve the very conditions it claims to solve.” Grüns also claimed
testosterone benefits that were allegedly misleading, as were claims to multiply,
enhance, or substitute for protein. Without calcium or magnesium, the gummies
were allegedly not even qualified as a standard multivitamin.

While these challenges (and others) are serious, the court
focused on the “comprehensive nutrition” and similar claims. And because it’s
obvious that you can’t get complete nutrition from gummies, those claims
weren’t plausibly deceptive: combining puffery with ambiguity doctrine, a
reasonable consumer would have had to look at the ingredients to figure out the
actual nutrient profile:  

Plaintiffs do not contend that the
language of the package should be taken literally—that the Gummies provide
either complete or comprehensive nutrition such that a person who eats a pack
of the Gummies need not eat anything else in order to survive. That is what the
plain text read in isolation states. … Such a representation might be
reasonably credited if made by a wellness resort or health food spa about the
program it offers for visitors. When made by a purveyor of gummies, it is
plainly hyperbolic, and no reasonable consumer could understand that a small
packet of gummy bear supplements that weighs .7 ounces and that is advertised
as a “Dietary Supplement” could replace the need to eat any other foods.

The court thus distinguished Weinstein v. Rexall Sundown,
Inc., 2024 WL 4250353 (E.D.N.Y. Aug. 26, 2024), which found plausible
misleadingness when the advertiser touted “complete multivitamin gummies”
accompanied by the language that the product contained “B Vitamins” and “13
Essential Nutrients” but the product did not in fact contain Victims B1, B2,
and B3. Likewise, Cabrera v. Bayer Healthcare, LLC, 2019 WL 1146828 (C.D. Cal.
Mar. 6, 2019), held that the claim that a product was a “complete” multivitamin
was plausibly misleading when the product was missing 13 vitamins that the body
requires. In both cases, the adjective “complete” modified the noun “vitamin.”

Do reasonable consumers understand that, on gummies,
“nutrition” literally means all the macro and micronutrients we need?
Plaintiffs walked into this problem by talking about fats, protein, etc. They
offered the argument that a reasonable consumer would understand that Gummies
supply “all essential nutrients,” or “essential nutrients such as calcium and
magnesium,” or “all other supplements,” or that the “Gummies provide what
fruits and vegetables provide—the same nutrition, in another form.”

But, the court reasoned, if the term “comprehensive
nutrition” is not understood by its dictionary definition, then it is
ambiguous. [I’m more sympathetic to the “all essential [micro]nutrients”
interpretation because that’s what you’d expect from a “comprehensive”
supplement: one pill to take! At least I can imagine a substantial number of
ordinary consumers thinking that.] And we know that, when there’s ambiguity, a
reasonable consumer must consult the ingredient list (and apparently keep track
of things like magnesium and iron being missing). I think this is an example of
why “ambiguity” is troublesome: the court doesn’t ask whether a reasonable
consumer could read the claim as unambiguous and not seek further
information, but only whether there’s ambiguity in the abstract.

“No reasonable consumer could understand from the package as
a whole that the Gummies contained ‘key macronutrients like protein and fat,’
that it contained adequate “amounts of critical nutrients like fiber and iron,’
or that it contained ‘calcium and omega-3 fatty acids,’ much less that it could
‘replace the nutritional complexity of fruits and vegetables and all other
targeted supplementation.’”

As for the off-package claims, they mostly “parrot” the
language of “comprehensive nutrition,” or use the adjective “comprehensive” “in
an even less specific manner than on the packaging.” They could not save the
claim.

What about the specific health issues touted? Some were mere
puffery: “Gut health that fits in a lunchbox” and “#1 energy hack.” Grüns also advertises
that the Gummies “help reduce colds by 70%,” result in “stronger hair in just
30 days,” and “boost T-levels,” but neither plaintiff alleged that she relied
on those ads.

A subset of statements were plausibly misleading: those targeting
GLP-1 users in particular. “Even if the advertisements could be understood to
be ambiguous, there is no surrounding context that would dispel a reasonable
consumer’s understanding that the Gummies contain the nutrients needed to fill
gaps created by the medication.” However, plaintiffs failed to sufficiently
plead that use of GLP-1 medications creates specific nutritional gaps and that
the Gummies do not in fact fill those gaps. It wasn’t enough to allege that the
“formulation is not tailored to the specific needs of GLP-1 users and lacks the
dosage strength, clinical targeting, or comprehensiveness to meaningfully
address the deficiencies it invokes.” This part of the claim was dismissed
without prejudice.

from Blogger https://tushnet.blogspot.com/2026/05/complete-nutrition-claims-for.html