“implied gov’t approval” claims don’t work

Posted on August 25, 2021 by rtushnet

ImPACT Applications, Inc. v. Concussion Management, LLC, 2021
WL 978823, No. GJH-19-3108 (D. Md. Mar. 16, 2021)

ImPACT provides training and software, including a proprietary
evaluation system. Immediate Post-concussion Assessment and Cognitive Testing “provides
a neurocognitive test battery that offers healthcare professionals objective
measures of neurocognitive functioning.” Healthcare professionals, including in
schools, teams, and the military, use it to aid assessment and management of
concussions in individuals between the ages of 12 and 59. ImPACT Pediatric is
for patients ages 5-11. They are “the only software-based neurocognitive tests
that have been cleared and designated … as Class II medical devices for use as
an aid in the assessment and management of concussions.”

XLNTbrain seeks to “assess[] neurological activity in
athletes in order to enhance their performance,”  and sells its products to schools, medical professionals,
and sports teams in direct competition with ImPACT.

There are 1.6 to 3.8 million concussions in sports and
recreational activities annually. Traumatic brain injuries account for more
than 2 million emergency room visits per year in the US and contribute to the
deaths of more than 50,000 Americans. In 2019, the FDA issued a safety
communication, recommending that “people who may be tested for a head
injury, parents and caregivers of people who may be tested, coaches and
athletic administrators, sports medicine specialists and athletic trainers, and
health care providers who assess or diagnose head injuries” should “use only
cleared or approved medical devices to help assess or diagnose a head injury,
including a concussion.” It warned that uncleared products marketed for “assessment,
diagnosis, or management of a head injury, including concussion” violate the
law.

While ImPACT’s products are on the FDA’s list of approved
medical devises for assessing head injury, XLNTbrain’s products are not.

Nonetheless, it allegedly falsely advertised with claims
such as:

• XLNTbrain offers “The First Complete Online Concussion
Test and Management Program for All Sports and Levels.”

• “[C]linical-caliber post-concussion evaluations to monitor
severity and the recovery progress.”

• “XLNTbrain Sport provides clinical-caliber concussion care
giving subscribers a complete solution that’s easy to use, affordable and adds
a ‘virtual neurologist’ for the team.”

• “XLNTbrain offers a complete feature set when compared to
other solutions.”

• XLNTbrain “helps answer the most common question, ‘when
can I play again?’ Dr. Kerasidis created a tool that guides the decision-making
process, giving all-involved individuals a recovery care plan that includes
daily monitoring of symptoms, progressive physical and cognitive exertion
exercises and a timeline to safely return to gameplay.”

Perhaps surprisingly given the seriousness of the claims,
the court found that ImPACT didn’t allege any actionable statements. It grouped
the statements into three categories: (1) false implications of FDA approval;
(2) misleading suggestions that XLNTbrain products possess the qualities of
FDA-approved devices; and (3) statements of superiority. But these were “exactly
the type of claims that are non-actionable under the Lanham Act.”

Courts do not recognize implied government approval
claims in the absence of explicit claims. ImPACT didn’t identify anything
explicit about FDA review or approval in the statements. The Lanham Act can’t be
used to enforce the FDCA.

What about suggestions that XLNTbrain’s products have
qualities that only exist in medical devices cleared by the FDA in providing
screening, return-to-play assessments, diagnosis, and care? Unfortunately,
ImPACT failed to specify what qualities unapproved products can’t have. “Is it
impossible for XLNTbrain’s post-concussion evaluations to be clinical-caliber?
Can only FDA-approved devices provide a Daily Symptom Checklist?” The court
didn’t see why an unapproved product could have the qualities of an
FDA-approved device, especially since ImPACT admitted that FDA approval wasn’t
necessary to compete in the parties’ field. The court could not interpret and
apply the FDCA as part of a Lanham Act case.

Finally, the statements of superiority, e.g. “Beyond
Baseline Concussion Tests” and “The First Complete Online Concussion Test and
Management Program for All Sports and Levels,” weren’t sufficiently alleged to
be false. ImPACT didn’t allege that XLNTbrain wasn’t “beyond” baseline
testing, or that it wasn’t complete. Instead, the argument was that these
statements necessarily implied superiority to ImPACT, which couldn’t be true
because the latter was FDA-cleared. The court didn’t think that followed. “Moreover,
XLNTbrain has not been denied approval by the FDA—rather it never sought
approval—so the FDA has not declared XLNTbrain inferior in some measurable way.”
Also, it was likely that these statements were puffery.

State-law claims therefore failed too.

from Blogger https://ift.tt/3zcHl9D

Posted in Uncategorized | Tagged , | Leave a comment

“non-toxic” plausibly means “not harmful to people, animals, or environment”

Posted on August 25, 2021 by rtushnet

In re S.C. Johnson & Son, Inc. Windex Non-Toxic Litig.,
2021 WL 3191733, No. 20-cv-03184-HSG (N.D. Cal. Jul. 28, 2021)

Plaintiffs alleged that SCJ used false and misleading labels
that certain of its Windex products have a “non-toxic formula.” The products
allegedly contain ingredients that are toxic to humans, animals, and/or the
environment: they can allegedly cause “severe ocular irritation,” “skin and eye
irritation,” “damage to certain plants and seedlings,” “conjunctivitis and
corneal damage,” “headaches,” “breathing difficulties,” “erythema,
desquamation, and drying of the skin,” and “fissuring.” They brought the usual
California claims.

The court determined that the products were similar enough
to be grouped together despite having some varying ingredients, and that
plaintiffs had standing for injunctive relief. Factual issues about what counts
as toxic—and whether, as the FTC says, a product could be labeled non-toxic if
it had small amounts of an ingredient at a level that is not harmful to humans
or the environment—were not for the motion to dismiss stage.

The key question is whether a reasonable consumer would be
misled by the term “non-toxic” into thinking that the Products “[do] not pose
any risks to humans or the environment, including household pets.” SCJ relied
on a definition of “toxic” from the Merriam-Webster Dictionary, and contends
that it “means that a substance is ‘poisonous’ or ‘capable of causing death or
serious debilitation.’ ” And the FTC’s Green Guides explain that:

[T]here is no allowance for “de minimis” or “trace”
toxicity. However, a non-toxic product could contain a toxic substance at a
level that is not harmful to humans or the environment. For example, apple
seeds contain cyanide. Although a marketer could not claim that cyanide itself
is non-toxic, the amount in an apple is so low that it is not harmful to humans
or the environment, and so the marketer could claim the apple is non-toxic.

Plaintiffs responded that even the Merriam-Webster
Dictionary offers an alternative definition of toxic, defined as “harmful.”
They argued that a reasonable consumer could believe that “non-toxic” means
“not posing a risk of harm.” And the Green Guides say:

A non-toxic claim likely conveys that a product, package, or
service is non-toxic both for humans and for the environment generally.
Therefore, marketers making non-toxic claims should have competent and reliable
scientific evidence that the product, package, or service is non-toxic for
humans and for the environment or should clearly and prominently qualify their
claims to avoid deception.

As it happens, the NAD evaluated one of the products at issue
in this case—Windex Vinegar Non-Toxic Formula Product—and recommended that SCJ
“discontinue the claim ‘non-toxic’ on the package.” It found that non-toxic, as
used on the product, “reasonably conveys a message that the product will not
harm people (including small children), common pets, or the environment.”
“Importantly, NAD noted that a reasonable consumer’s understanding of the
concept of ‘will not harm’ is not limited to death, but also various types of
temporary physical illness, such as vomiting, rash, and gastrointestinal
upset.” SCJ appealed to the National Advertising Review Board, which upheld the
decision and “express[ed] concern that an unqualified non-toxic claim will lead
reasonable consumers to conclude not only that a misused cleaning product does
not pose a risk of death or serious consequences, but also that product misuse
poses no health risks, even those that are not severe or are more transient in
nature.”

Likewise, the Environmental Working Group  considered two of the products at issue in
this case—Windex Ammonia-Free Non-Toxic Formula and Windex Original Non-Toxic
Formula—and determined that the former was “[c]orrosive” and “[m]ay contain
ingredients with potential for respiratory effects; chronic aquatic toxicity;
[and] developmental/endocrine/reproductive effects” while the latter “[m]ay
contain ingredients with potential for acute aquatic toxicity; respiratory
effects; skin irritation/allergies/damage.” Thus, this wasn’t plaintiffs’
idiosyncratic “personal understanding of non-toxic.”

from Blogger https://ift.tt/3Ba7F4F

Posted in Uncategorized | Tagged , , , | Leave a comment

slack fill can be misleading despite numbers on box

Posted on August 25, 2021 by rtushnet

Maisel v. Tootsie Roll Indus., LLC, 2021 WL 3185443, No.
20-cv-05204-SK (N.D. Cal. Jul. 27, 2021)

Courts have divided on the reasonability of being deceived
by alleged slack-fill violations when box contents/weight are clearly marked.
This court sided with the consumer for purposes of a motion to dismiss:

[A] reasonable consumer might not
necessarily comprehend the differential between the size of the box and the
amount of the candy contained inside, even with that amount listed numerically.
The size of the box suggests something to the average person that a recitation
of numbers might not be sufficient to overcome; the common experience of
opening up an expensive box of movie theater candy to reveal a paltry few
pieces inside speaks to that fact.

 Tell us how you really feel!

from Blogger https://ift.tt/38fdzFg

Posted in Uncategorized | Tagged , | Leave a comment

TM choice of law: P’s primary place of business determines which state’s law applies

Posted on August 24, 2021 by rtushnet

Lontex
Corp. v. Nike, Inc., 2021 WL 3170600, No. 18-5623 (E.D. Pa. Jul. 27, 2021)

A
rare choice of law opinion involving competitors. This is a trademark
infringement claim but Lontex asserted claims under various state unfair trade
practices law. The court declined to allow it to do that and confined it to the
law of Pennsylvania, whose UTPCPL does not grant competitors standing. Thus,
Lontex was left with only common-law and federal trademark claims.

Following
the Restatement of Conflicts, courts consider: “the place where the injury
occurred; the place where the conduct causing the injury occurred; the
domicile, residence, nationality, place of incorporation and place of business
of the parties; and the place where the relationship, if any, between the
parties is centered.” Place of the injury is most important where “the injury
occurred in a single, clearly ascertainable, state” and less important where
“there may be little reason in logic or persuasiveness to say that one state
rather than another is the place of injury, or when…injury has occurred in
two or more states.” With respect to unfair competition specifically, it notes:

The effect of the loss, which is pecuniary in its nature,
will normally be felt most severely at the plaintiff’s headquarters or
principal place of business. But this place may have only a slight relationship
to the defendant’s activities and to the plaintiff’s loss of customers or
trade. The situation is essentially the same when misappropriation of the plaintiff’s
trade values is involved, except that the plaintiff may have suffered no
pecuniary loss but the defendant rather may have obtained an unfair profit. For
all these reasons, the place of injury does not play so important a role for
choice-of-law purposes in the case of false advertising and the
misappropriation of trade values as in the case of other kinds of torts.
Instead, the principal location of the defendant’s conduct is the contact that
will usually be given the greatest weight in determining the state whose local
law determines the rights and liabilities that arise from false advertising and
the misappropriation of trade values.

As
for the third factor, the plaintiff’s “principal place of business[] is the
single most important contact for determining the state of the applicable law
as to most issues in situations involving the multistate publication of matter
that…causes him financial injury.”

There
was a true conflict between the states’ unfair competition statutes because
other states did grant competitors standing.

Here,
the plaintiff’s principal place of business was the key, and that was
Pennsylvania.  Lontext argued that
“Illinois was the single state in which Lontex had the most pre-infringement
unit sales…but fell back to fourth place in the infringement period when Nike
flooded the Illinois market.” But that was no matter. “In a trademark
infringement case such as this, every state in which both parties do business
may have some relationship to the issues. There is evidence in this case that
the allegedly infringing products were sold in all 50 states.”

from Blogger https://ift.tt/3DaTsGC

Posted in Uncategorized | Tagged , | Leave a comment

“Natural” trade name can mislead consumers, court holds

Posted on August 24, 2021 by rtushnet

Early
v. Henry Thayer Co., 2021 WL 3089025, No. 4:20-CV-1678 RLW (E.D. Mo. Jul. 22,
2021)

Thayer
markets THAYERS Natural Remedies, which are sold in drug stores, grocery
stores, and other retail stores nationwide. Early sued Thayer for violations of
the Missouri Merchandising Practices Act, breach of express warranty, and for unjust
enrichment for misleading consumers into believing its products are natural and
do not contain synthetic ingredients.

After
other holdings, such as finding no FDCA preemption, the court turned to Thayer’s
argument that its trade name couldn’t be an express warranty. Trade names, Thayer
argued, “only ‘communicate[ ] that any product bearing said trademark is
authentic.’ ”

But
there were factual issues about the trade name: the ® only appeared after THAYERS,
not after “Natural Remedies.” Still, Thayer argued, it was part of a
registration it had, albeit a disclaimed part. [Which really should answer the question:
it’s not a protectable part of the trade name as such.] But anyway, the court
declined to find any rule that a trade name can’t create an express
warranty.  “The Court does not agree that
authenticity is the only message a trade name can convey. As other courts have
found, it is not unreasonable for consumers to attach meaning to the names of
products, particularly when descriptive words are part of the name.” Seems
right, especially after Tam and Matal!

However,
the court dismissed any claims based on Thayer’s online statements because the plaintiff
didn’t allege that she was personally exposed to or relied on those statements.

The
court also found that listing ingredients on the side panel wasn’t enough to
avoid misleadingness for purposes of a motion to dismiss, and that the
plaintiff alleged a sufficient risk of future harm to allow her claim for injunctive
relief.  

from Blogger https://ift.tt/3mr7MVp

Posted in Uncategorized | Tagged , , , | Leave a comment

selling infant & child pain reliever in different boxes (& prices) wasn’t plausibly misleading

Posted on August 24, 2021 by rtushnet

Eldmann v. Walgreen Co. 2021 WL 764121, No.
5:20-cv-04805-EJD (N.D. Cal. Feb. 26, 2021)

Eldmann argued that Walgreens falsely marketed its Infants’
Pain & Fever product in contrast to its Children’s Pain & Fever
Acetaminophen product. Infant products used to contain 80 mg of acetamiophen per
mL, whereas children’s product contained 160 mg per 5 mL. An industry-wide
effort to prevent accidental infant overdoses changed the concentration to be 160
mg per 5 mL uniformly. Thus, both products now have the same concentration,
display age ranges of 2-3 years and 2-11 years respectively, and are otherwise
distinguished by dosing mechanism: syringe for infants, cup for children’s.
Consumers were allegedly injured because “the Infants’ Product can cost almost
four times as much per ounce than the Children’s Product, despite being
identical medicines.” Eidmann brought the usual California claims.

The court found no plausible deception. The front label (and
the highlighted “drug facts” information on the back) showed that they had the
same composition. They had different dosage devices, but that didn’t plausibly
suggest different formulations, given the front-label representation. The
infant product instructs consumers to “use only with enclosed syringe,” and the
side said that the “enclosed syringe [is] specifically designed for use with
this product.” “Thus, the infant-specific branding is less suggestive of a
formulation specially designed for infants, as Eidmann alleges, rather it more
reasonably pertains to the infant-specific dosing mechanism included to
administer the product.”

Also, the overlapping age ranges would allow a consumer to “readily
compare the products and find not only that they contain the same acetaminophen
concentration, but also that they can be used by children of identical ages.”
Plus, the images were cartoon-like illustrations, not photos. “It is hard to
imagine that a reasonable consumer would believe the medicine is specially
formulated for infants based on an illustration, especially one so
simplistically one-dimensional as the one on the Infants’ Product.”

While some cases have come out this way, other courts have
found deception plausible in similar circumstances, but the court relied on the
fronts of these particular products.

There was, likewise, no fraudulent omission claim on these
facts.

from Blogger https://ift.tt/3B9OBDG

Posted in Uncategorized | Tagged , | Leave a comment

DMCA gives Walmart only a gleam of light in sculpture infringement case

Posted on August 24, 2021 by rtushnet

Russell v. Walmart Inc., No. CV 19-5495-MWF (JCx), 2020 WL
9073046 (C.D. Cal. Oct. 16, 2020)

Russell owns registered copyrights in certain photos of
sculptures that appeared on Walmart’s marketplace. Previously, the court found
that all of Walmart’s affirmative defenses failed as a matter of law, except its
DMCA defense, which remains for trial. There were genuine disputes of material
fact as to whether Walmart was responsible for posting the photographs on the
Walmart Marketplace. [What is being infringed here: the photos or the
sculptures? Since the court concluded she owned both, that doesn’t matter for
liability; it could matter a lot for damages and whether the DMCA applies, but
the court seems uninterested.] [Looking back on previous orders in the case, it
does not seem that Walmart got the right witness for its DMCA defense; she didn’t
seem to have detailed personal knowledge of any DMCA policy, and more generally
Walmart may be running behind Amazon in dealing with third-party seller
misbehavior on its platform, despite the fact that Amazon is taking all the
heat for this kind of thing.]

Russell created four sculptural works: “Medusa,” “Polyp,”
“Hydra,” and “Ophelia”; there was a dispute about whether the sculptures
resemble or embody natural aspects of real-life jellyfish and whether Russell intentionally
designed them to look like freshwater jellyfish. Medusa seems to be the key one;
Walmart argued that the sculpture’s “sole intrinsic function is providing
light,” while Russell responded that the sculptures are works of art, “not
simply light fixtures.”

the pictures and lights in suit

The key facts around Walmart’s responsibility for
marketplace sellers have been redacted from the opinion, so it’s impossible to
tell what’s going on there. Discussions about whether the accused product was a
“poor quality replica” also include redactions, as do the discussion of
damages. “In sum, the parties do not agree on much,” but the public can have no
idea of where they diverge.

The court here concluded that there were disputed issues of
material fact on substantial similarity (and excluded a proposed expert report
from Mark McKenna). The Medusa lamp was separable from its lightbulb, so the
useful articles doctrine didn’t diminish the protection granted by copyright.
Nor was it “so lifelike in its resemblance of a jellyfish that it lacks
copyright protection.”

Though the Medusa sculpture may
borrow certain elements from jellyfish in nature, it does not appear, and was
not intended to appear, like a lifelike jellyfish. The sculpture is not held in
a glass container intended to mimic a jellyfish’s natural habitat like the
sculpture in Satava; it is oversized and hangs from the ceiling on a string connected
to the center of the sculpture. [Not sure why this fact in particular matters
to whether it’s taken from life, though the rest seems relevant.] The top piece
of the sculpture is constructed of overlapping sections of fabric, differing
significantly from the large bulbous head of an actual jellyfish. Tendrils of
varying length and patterned textures flow from the center of the sculpture,
unlike the largely uniform tentacles of an actual jellyfish.

In other words, Plaintiff’s
sculpture is “stylized and not lifelike.” Because of the “gazillions of ways to
combine” jellyfish-like elements to create a stylized, jellyfish-inspired work
of art, Plaintiff’s stylized sculpture is entitled to broad copyright
protection.

Substantial similarity: Russell argued that substantial similarity
wasn’t the appropriate test in cases involving direct copying [very wrong], but
even if that test did apply, there were genuine issues of material fact. “[T]he
lamps are the same color, have three distinct sections, have a circular top
piece constructed out of overlapping panels with curved sides and scalloped
edges, have a center part that is thicker than the bottom part, and have two
sets of long, thin tendrils with two different patterns.” A reasonable jury
could find substantial similarity.

Willful infringement: This requires actual awareness of the
infringing activity or reckless disregard/willful blindness. The photographs
posted on Walmart’s marketplace were strikingly similar to Russell’s
copyrighted pictorial works, but there was a genuine dispute of material fact
on whether Walmart was responsible for posting them, which precluded summary
judgment in Walmart’s favor on willfulness. Walmart argued something else
redacted, but those allegations were “hotly disputed,” and anyway “Plaintiff
produced evidence showing that although Walmart had [redacted]. And in November
2018, [redacted] Walmart claims that [redacted].Walmart also knew that
[redacted],” creating an inference of willful blindness/reckless disregard.
Comment: This is not law. How is anyone to use this decision to guide their
conduct with an understanding of what constitutes willful blindness or reckless
disregard?

Russell could also cover profits attributable to the
infringement, and some sort of dispute about that is redacted.

Lanham Act/unfair competition claims.  Again, there was a genuine issue of fact about
Walmart’s responsibility for the posting. Apparently on the premise that the
posting was literally false about something, if Russell proved Walmart’s
responsibility, “actual deception and materiality will be presumed.” Her damage
expert calculated that the false listings cost her thousands of dollars in lost
profits and harm to her goodwill and reputation. Not clear how she worked around Dastar.

from Blogger https://ift.tt/3zdHcCT

Posted in Uncategorized | Tagged , , | Leave a comment

ThermoLife wins appeal of Lexmark-based dismissal of claims

Posted on August 23, 2021 by rtushnet

Thermolife Int’l, LLC v. Compound Solutions, Inc., No.
20-16138, — Fed.Appx. —-, 2021 WL 963782 (9th Cir. Mar. 15,
2021)

ThermoLife got a significant success in this appeal of the
dismissal of its false patent marking, false advertising, and unfair
competition claims.

One part was affirmed: TL alleged that Compound falsely
marked one of its products, “VASO6,” as patented even though VASO6 does not
practice a patented invention and is merely common green tea extract. Although
TL sufficiently pled false marking by alleging that lab results confirmed that
there were no patented materials in it, it didn’t plausibly allege an intent to
deceive the public. It wasn’t enough to allege that Compound was a “sophisticated”
seller.

TL also alleged that Compound falsely advertised that VASO6
has vasodilative properties, “and therefore potential customers were deceived
into purchasing VASO6 and that such false advertising diverted sales away from
ThermoLife’s nitrates.” Was TL allowed to sue under Lexmark? Yes. Its
injury was in the Lanham Act’s zone of interests because ThermoLife alleged
that customers chose VASO6 over ThermoLife’s nitrates, which is a commercial
injury to sales. And it alleged proximate cause by alleging that its nitrates
directly compete with Compound’s falsely advertised VASO6. It alleged that both
its nitrates and VASO6 [purportedly] increase vasodilation “and are sold at the
same level in the dietary supplement supply chain to pump and pre-workout
manufacturers for licensing and use in their own products.” Further, some of TL’s
customers considered replacing or replaced TL’s nitrates with VAS06.  Products containing the ingredients are
allegedly displayed side-by-side in the “pump and pre-workout” sections of
online shops and brick-and-mortar stores. This sufficed, and so the Lanham Act
and congruent state law claims were revived.

from Blogger https://ift.tt/3zc3ZPv

Posted in Uncategorized | Tagged , | Leave a comment

“tested and certified” can be false if in fact products were merely “certified” by non-tester

Posted on August 23, 2021 by rtushnet

Wedi Corp. v. Wright, 2021 WL 1054463, No. 20-35242 (9th
Cir. Mar. 3, 2021)

Wedi alleged that three statements were literally false in
violation of the Lanham Act and the Washington Consumer Protection Act:

All Hydro-Blok Products Are IAPMO Tested and Certified.
(IAPMO is a relevant certifier).

Hydro-Blok Products Are ICC-ES Tested and Certified. (ditto).

What is HYDRO-BLOK? Put simply it is the easiest, quickest
and most user-friendly way to build a water-proof shower or tub surround at a
price you can afford.

The last (easiest, quickest, most user-friendly, affordable)
was non-actionable puffery.

As to the first, Wedi didn’t provide enough evidence to show
that the products weren’t IAPMO tested.

However, the district court erred in granting summary judgment
on the ICC-ES statement. Wedi presented evidence that ICC-ES did not request
product samples from Hydro-Blok to test, but rather relied upon IAPMO’s tests. “A
legitimate claim could be made that no testing of Hydro-Blok products was
conducted by ICC-ES.” This is interesting because some courts won’t inquire
further into a certifier’s practices—query whether there is a material
difference between “ICC-ES Certified” and “ICC-ES Tested and Certified.”

from Blogger https://ift.tt/2UJ20mM

Posted in Uncategorized | Tagged | Leave a comment

Vanilla claim comes closer than most b/c of label image, still falls short

Posted on August 23, 2021 by rtushnet

Budhani v. Monster Energy Co., 2021 WL 1104988, No. 20-cv-1409
(LJL) (S.D.N.Y. Mar. 22, 2021)

Monster “sells espresso energy drinks blended with European
milk and purporting to be flavored with vanilla under their Monster brand.” E.g.,
the Espresso Monster Vanilla Cream Triple Shot says “Vanilla Cream,” “Triple
Shot,” and has an image of the vanilla flower on the front label. But it allegedly
had only trace/de minimis amounts of vanilla from the vanilla bean, not
predominantly/exclusively vanilla. Plaintiff’s survey allegedly showed that
over 56% of respondents believed that the flavor in Defendant’s Product “came
from vanilla beans from the vanilla plant.”

Even that wasn’t enough, despite the court’s conclusion that
the presence of a vanilla bean image could plausibly mislead consumers, because
plaintiff failed to sufficiently plead falsity.

Previous cases held that the word “vanilla,” by itself,
indicates a flavor, and dismissed complaints when the labels in question made
no further representation as to any ingredient(s) or the source of that flavor.
“In each of these cases the court noted that a different result might follow if
the defendant had used additional language that made representations about an
ingredient and not a flavor or contained additional modifiers or where
consumers have a demonstrated reasonable belief about the inclusion of a particular
ingredient.” By contrast, courts in the Second Circuit “have sustained claims
where the language of a product label, in context, referred not only to a
flavor but also indicated the presence of an ingredient.”

The product in suit didn’t have “made with” language, which
has been significant in the past, or other verbal indicia of using recognizable
ingredients such as touting a commitment to “clean food” and “menu
transparency,” or promoting the nutritional values of vanilla from vanilla
beans. But defendant did use the image of a vanilla flower, “prominently,
next to the image of a coffee bean, and alongside the use of the word ‘vanilla.’”
That image and context plainly suggested the presence of extract from a vanilla
bean. And Monster admitted that the coffee bean images were intended to
convey ingredients, not just flavors or “facsimiles.” So too with the word “cream.”
The text on the side of the can confirmed both of those things, with some
marketing blather ending in “Three shots of espresso[] blended with milk and
enhanced with Monster’s Espresso Energy Blend.”

So: a reasonable consumer “could understand it to convey
that the Product contains some non-negligible amount of extract derived from a
vanilla bean, but would not understand the Product’s vanilla flavor to be
derived predominantly or exclusively from vanilla bean extract.” Thus, it was
plausibly deceptive if, as alleged, the product contained only trace amounts of
vanilla from vanilla beans. As the Second Circuit has already held, a defendant
can’t “lead consumers to believe” that its products were made with an
ingredient “so long as [the product] contained an iota of [that ingredient].”

Monster argued that most vanilla-flavored products aren’t
made exclusively or primarily from vanilla beans, so no reasonable consumer
would believe that of its product.  “At
this stage, however, the Court cannot assume that a reasonable consumer will
necessarily be knowledgeable about the compounds that create the vanilla taste,
the artificial and natural sources from which they derive, and where the
compounds are obtained for commercial use.”

Although the survey and other allegations about what
consumers want and believe wouldn’t alone be enough to sustain the complaint in
the absence of the court’s conclusions about the label itself, they did reinforce
the court’s reasoning.

However, reasonable consumers wouldn’t conclude that vanilla
bean extract was the predominant or exclusive source of the vanilla flavor,
because the label didn’t say anything about that, and the ingredient list
included “natural flavors.”

Now: “A plaintiff cannot simply obtain discovery into a
product’s ingredients by making the conclusory assertion that the defendant is
falsely representing those ingredients.” It was not enough to allege that a
chemical analysis showed differences in compounds in Simply Organic Madagascar
Vanilla Extract—represented to be vanilla derived from vanilla bean—with the
compounds in the drink that “are responsible for the bulk of vanilla’s flavor.”
Plaintiff alleged that “the Product contains an abnormal excess of vanillin …
which is a strong indicator it contains vanillin from non-vanilla sources.” That
wasn’t enough to plead that there was only a trace or de minimis amount of
vanilla from vanilla beans in the drink.

Pleading that the label violated FDA standards for food
labeling also failed, since the FDCA doesn’t provide for private enforcement,
and NY, unlike California, hasn’t adopted all federal food rules as its own to
be enforced via the UCL. “To state a GBL claim, the challenged act must be
‘inherently deceptive,’ and ‘such acts cannot be re-characterized as
‘deceptive’ simply on the grounds that they violate another statute which does
not allow for private enforcement.’ ”

Other common-law causes of action also failed, though
plaintiff had leave to replead the Section 349 & 350 claims.

from Blogger https://ift.tt/3mqZKfl

Posted in Uncategorized | Tagged , , | Leave a comment