Tag Archives: preemption

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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federal preemption for airlines doesn’t extend to Delta’s “carbon neutral” ads

Posted on July 8, 2024 by rtushnet

Berrin v. Delta Air Lines, Inc., 2024 WL 3304815, No. 2:23-cv-04150-MEMF-MRW (D.C. Cal. Mar. 28, 2024) The court declined to find Berrin’s consumer protection claims against Delta based on its “carbon neutral” advertising preempted by the Airline Deregulation Act (ADA, … Continue reading →

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Slow fashion: checkerboard design plausibly infringes another checkerboard design

Posted on July 3, 2024 by rtushnet

Hian v. Louis Vuitton USA Inc, 2024 WL 3237591, No. 22-3742 (E.D. Pa. Jun. 28, 2024) The court tosses out most of an independent fashion designer’s claims against LVMH, while preserving one copyright infringement claim based on a distorted checkerboard … Continue reading →

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after experts excluded, slack fill class action fails

Posted on January 16, 2024 by rtushnet

Krause-Pettai v. Unilever United States, Inc., — F.Supp.3d —-, 2023 WL 6429805, No. 20-cv-1672-AGS-BLM (S.D. Cal. Sept. 30, 2023) This case is about “nonfunctional slack fill,” or useless empty space, inside underarm-deodorant sticks. The court rejected the claim on summary … Continue reading →

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Claims against “Southern Comfort” malt beverage not preempted

Posted on October 11, 2023 by rtushnet

Del Rosario v. Sazerac Co., 2023 WL 6318083, No. 23-cv-1060 (AS) (S.D.N.Y. Sept. 28, 2023) Sazerac sells a malt version of its famous Southern Comfort whiskey. Plaintiff alleged that Sazerac designed this malt version to look just like the original … Continue reading →

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