Tag Archives: false advertising

Supplement guide was plausibly an agent of supplement company; direct and secondary liability available

Posted on March 22, 2023 by rtushnet

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 →

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“GoodBelly” and “GoodHealth” plus label plausibly communicate net digestive health benefits

Posted on March 22, 2023 by rtushnet

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 →

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two melatonin class actions alleging higher doses than needed survive

Posted on March 20, 2023 by rtushnet

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 →

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claims to “take a beating,” “withstand,” and “increase durability” were puffery

Posted on March 20, 2023 by rtushnet

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 →

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trial court erred by presuming materiality of black box warning; $834 million penalty vacated

Posted on March 20, 2023 by rtushnet

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 →

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video on company’s YouTube channel was informational, not commercial speech

Posted on March 20, 2023 by rtushnet

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 →

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no disgorgement/fees in false advertising case even after Romag remand

Posted on March 16, 2023 by rtushnet

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 →

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detailed examination of harm story dooms FedEx’s false advertising claim

Posted on March 14, 2023 by rtushnet

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 →

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“fit” on snack bars isn’t implied nutrient or “healthy” claim

Posted on March 13, 2023 by rtushnet

Seljak v. Pervine Foods, LLC, 2023 WL 2354976, No. 21 Civ. 9561 (NRB) (S.D.N.Y. Mar. 3, 2023) Plaintiffs sought to represent a class of purchasers of FITCRUNCH Whey Protein Baked Bar products or FITBAR energy bar products. They contain high … Continue reading →

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Failure to include adjusted protein percentage on protein-touting products can be misleading

Posted on March 13, 2023 by rtushnet

Rausch v. Flatout, Inc., — F.Supp.3d —-, 2023 WL 2401452, No. 22-cv-04157-VC (N.D. Cal. Mar. 8, 2023) I love a good summary: When a manufacturer advertises the amount of protein in a product on its package, the Food and Drug … Continue reading →

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