Tag Archives: preemption

claims about scientific studies might imply FDA approval

Posted on October 21, 2025 by rtushnet

BioGaia USA, LLC v. Probiotiv Naturals LLC, 2025 WL 2946910, No. CV 25-3592 PA (MBKx) (C.D. Cal. Sept. 5, 2025) BioGaia sued Probiotiv – a competitor in the sale of priobiotic dietary supplements for oral health, for false advertising; Probiotiv … Continue reading →

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pharmacos face judicial resistance to claims against compounding pharmacies for weight loss drugs

Posted on September 29, 2025 by rtushnet

Three cases showing aspects of the challenges, only one of which even partially survives: Novo Nordisk, Inc. v. Brooksville Pharm. Inc., 785 F.Supp.3d 1123 (M.D. Fla. 2025) Novo Nordisk sells FDA-approved drugs containing semaglutide, Wegovy, Ozempic, and Rybelsus. Brooksville is … Continue reading →

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mislabeling nut ingredients doesn’t justify class action because not everyone has nut allergies

Posted on September 17, 2025 by rtushnet

Fukaya v. Daiso California LLC, No. 23-cv-00099-RFL, 2025 WL 2644747 (N.D. Cal. Sept. 15, 2025) Fukaya, who is allergic to tree nuts, alleged that Daiso failed to properly label its pre-packaged food products as containing tree nuts on its English-language … Continue reading →

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P&G’s brand extension ZzzQuil must face lawsuit alleging falsity of its “Non-Habit Forming” claim

Posted on July 14, 2025 by rtushnet

Sneed v. Procter & Gamble Company, — F.Supp.3d —-, 2025 WL 1017933, No. 23-cv-05443-JST (N.D. Cal. Apr. 4, 2025) This case is about a product I recently noticed, “Nighttime Sleep Aid” products containing diphenhydramine hydrochloride as ZzzQuil. Sneed alleged that … Continue reading →

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plaintiffs don’t have to use full FDA methods for testing nutrients to avoid FDA preemption

Posted on July 2, 2025 by rtushnet

Scheibe v. ProSupps USA, LLC, — F.4th —-, 2025 WL 1730272, No. 23-3300 (9th Cir. Jun. 24, 2025) The FDA specifies testing methods for determining the amount of carbohydrates and calories in a food, as well as a sampling process … Continue reading →

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FDA preclusion doesn’t work as often after Pom Wonderful (or Loper Bright?)

Posted on February 27, 2025 by rtushnet

Pacira BioSciences, Inc. v. Ventis Pharma, Inc., 2025 WL 576549, No. 2:24-cv-07554-MRA-RAO, (C.D. Cal. Jan. 17, 2025) Pacira alleged that its competitor (here Ventis) violated the Lanham Act by making claims about its drugs relating to (1) exemption from FDA … Continue reading →

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distinguishing false establishment claims from lack of substantiation claims

Posted on February 21, 2025 by rtushnet

Kurin, Inc. v. ICU Medical, Inc., 2024 WL 5416672, No. 8:24-cv-00564-FWS-ADS (C.D. Cal. Nov. 8, 2024) The parties compete in the market for medical devices aimed at addressing blood culture contamination (BCC) in hospitals. BCC is both medically and financially … Continue reading →

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Another API (c) case with false advertising and contract claims too

Posted on October 18, 2024 by rtushnet

Trackman, Inc. v. GSP Golf AB, 2024 WL 4276497, No. 23 Civ. 598 (NRB) (S.D.N.Y. Sept. 24, 2024) Trackman makes the golf simulator game Perfect Golf, which offers users the ability to virtually play some of the most famous golf … Continue reading →

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Claims that “non-drowsy” is false aren’t preempted by FDCA

Posted on October 17, 2024 by rtushnet

Calchi v. Topco Assoc., LLC, 2024 WL 4346420, No. 22-cv-747 (N.D. Ill. Sept. 30, 2024) Is there any circuit style more distinctive than the Seventh Circuit style? (Cf.) This is one of a number of lawsuits against purportedly non-drowsy cold … Continue reading →

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Copyright preemption in trade dress claims?

Posted on September 20, 2024 by rtushnet

Scotts Company LLC v. SBM Life Science Corp., — F.Supp.3d —-, No. 2:23-cv-1541, 2024 WL 4217446 (S.D. Ohio Sept. 18, 2024) Scotts makes consumer lawn, garden, pesticide, and insecticide products, including under the “ORTHO” brand. Scotts alleged rights in its … Continue reading →

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