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Recent Posts
- Third Circuit follows Second in protecting medical journals against trade libel claims
- “Safe” not puffery in context of electric dog collars
- Protecting Creativity with a Bottle of Jack on the Floribama Shore (and tiny JDI oral argument observations)
- Another digital “buy” button case survives motion to dismiss
- Supplement guide was plausibly an agent of supplement company; direct and secondary liability available
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Tag Archives: false advertising
“Safe” not puffery in context of electric dog collars
Hernandez v. Radio Systems Corp., No. EDCV 22-1861 JGB (KKx), 2023 WL 2629020 (C.D. Cal. Mar. 9, 2023) Hernandez brought the usual California claims against RSC for allegedly false and misleading advertising of its electric collar products for pets under … Continue reading
Another digital “buy” button case survives motion to dismiss
McTyere v. Apple, Inc, 2023 WL 2585888, No. 21-CV-1133-LJV (W.D.N.Y. Mar. 21, 2023) Plaintiffs alleged that Apple made false representations when it “sold” them digital content on the iTunes Store only to later remove their access to that same digital … Continue reading
Supplement guide was plausibly an agent of supplement company; direct and secondary liability available
Ariix LLC v. Usana Health Sci., Inc., 2023 WL 2574319, No. 2:22-cv-00313-JNP-DAO (D. Utah Mar. 20, 2023) The parties compete in the supplement market using direct marketing, so compete in both consumer supplement sales and in sales representative recruitment. “Nutritional … Continue reading
“GoodBelly” and “GoodHealth” plus label plausibly communicate net digestive health benefits
Andrade-Heymsfield v. Nextfoods, Inc., No. 3:21-cv-1446-BTM-MSB, 2023 WL 2576770 (S.D. Cal. Mar. 20, 2023) Plaintiff brought the usual California claims against a line of fruit juices — GoodBelly Probiotic JuiceDrinks — “that expressly or implicitly convey the message that the … Continue reading
two melatonin class actions alleging higher doses than needed survive
Mack v. Amazon.com, 2023 WL 2538706, No. C22-1310-JCC (W.D. Wash. Mar. 16, 2023) Plaintiffs alleged they bought and used Solimo, a melatonin supplement manufactured and sold by Amazon. Each product purports to provide a specific dose of melatonin per serving … Continue reading
Posted in Uncategorized
Tagged consumer protection, false advertising, fda, preemption
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claims to “take a beating,” “withstand,” and “increase durability” were puffery
Lowe v. ShieldMark, Inc., No. 1:19CV00748, 2023 WL 2540296 (N.D. Ohio Mar. 16, 2023) Lowe sued ShieldMark for (as relevant here) false advertising of its line floor tape. The court granted summary judgment because the accused statements were not falsifiable: … Continue reading
trial court erred by presuming materiality of black box warning; $834 million penalty vacated
State ex rel. Shikada v. Bristol-Myers Squibb Co., 2023 WL 2519857, SCAP-21-0000363, — P.3d —- (Hawai’i Mar. 15, 2023) The state sued two pharmaceutical companies for violating Hawai‘i’s Unfair or Deceptive Acts or Practices law (UDAP) by misleading the public … Continue reading
video on company’s YouTube channel was informational, not commercial speech
WatsonSeal Marketing LLC v. Crawlspace Ninja IP LLC, 2023 WL 2533061, No. 5:22-cv-649-LCB (N.D. Ala. Mar. 15, 2023) When is informational material related to a for-profit company’s business commercial speech? Here, the court finds a YouTube video noncommercial despite some … Continue reading
no disgorgement/fees in false advertising case even after Romag remand
Harbor Breeze Corp. v. Newport Landing Sportfishing, Inc., 2023 WL 2504988, No. SACV 17-01613-CJC (DFMx) (C.D. Cal. Mar. 13, 2023) Previous district court ruling on irreparable harm; previous 9th Cir. opinion remanding for reconsideration of disgorgement and attorneys’ fees after … Continue reading
detailed examination of harm story dooms FedEx’s false advertising claim
Ah, how I wish courts would apply the same scrutiny to trademark harm stories. FedEx Ground Package System, Inc. v. Route Consultant, Inc., 2023 WL 2466624, No. 3:22-cv-00656 (M.D. Tenn. Mar. 10, 2023) FedEx uses around 4500 independent contractors (ISPs) … Continue reading