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Category Archives: Advertising Litigation

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“Psychological Commitment” as a Basis for a Promotional Pricing Lawsuit?

Posted in Advertising, Advertising Litigation, Class Action Litigation
Class action plaintiffs continue to explore new theories under state promotional pricing statutes. Last week, a plaintiff filed a class action complaint against Gap Inc. in California state court, alleging that the company violates several state laws by not adequately disclosing which products are excluded from an advertised sale. As a result, consumers make a psychological commitment … Continue Reading

Hulu Hit with Class Action Over Automatic Renewals

Posted in Advertising, Advertising Litigation, Class Action Litigation
In 2010, California enacted a law governing automatic renewals. As we previously posted, the law generally requires that companies: (1) clearly disclose the material offer terms before a consumers subscribes; (2) obtain affirmative consent to the terms before the consumer is charged; (3) provide a confirmation to the consumer that includes the terms, a description … Continue Reading

Fit To Be Tied? Lessons from the Fitbit Recall

Posted in Advertising, Advertising Litigation, Class Action Litigation, Consumer Product Safety, FDA
The Consumer Product Safety Commission recently announced a recall of the Fitbit Force, a wireless activity-tracking wristband, because of consumer reports of rashes, skin irritation and blistering.  Consumers are directed to stop using the product and it is now illegal to sell or resell the product.  As is increasingly common, announcement of the recall was … Continue Reading

Supreme Court Clarifies Standing For Lanham Act False Advertising

Posted in Advertising Litigation
On March 25, 2014, a unanimous Supreme Court ruled that a manufacturer of components for use in refurbished toner cartridges has standing under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) to sue the maker of printers in which the cartridges could be used for false advertising.  Static Control Components, Inc., the component manufacturer, … Continue Reading

Association of National Advertiser’s Advertising Law & Public Policy Conference – April 23-24

Posted in Advertising, Advertising Litigation, Class Action Litigation, NAD
Join Partner John Villafranco at the Association of National Advertisers’ Advertising Law & Public Policy Conference in Washington, DC on April 23-24.  Mr. Villafranco’s session, entitled “Class Actions and a Collision with the NAD,” will explore the developing interaction between litigation and self-regulation, with particular emphasis on the rise in consumer class actions and CLRA … Continue Reading

The Hits Keep on Coming: New “Natural” Settlements and Filings

Posted in Advertising Litigation, Class Action Litigation, Food and Drug
Two more food companies have reached settlements over “natural” claims. In a class action suit against Popchips, Inc., plaintiffs alleged that the maker of Popchips snacks misled consumers by labeling and promoting its product as “natural” when it contained artificial and synthetic ingredients. Popchips denies the allegations, but agreed to establish a $2.4 million fund to … Continue Reading

A Win for Keeps for Lance Armstrong?

Posted in Advertising Litigation, Class Action Litigation, Food and Drug
Shortly after Lance Armstrong admitted to doping during his seven Tour de France wins, a group of plaintiffs filed a class action against both Armstrong and FRS, the maker of over-the-counter energy products. The plaintiffs alleged that FRS and Armstrong, a former FRS endorser, had engaged in false advertising and breach of warranty when they promoted FRS products as Armstrong’s … Continue Reading

“Natural” Class Action Against Dietary Supplements

Posted in Advertising Litigation, Class Action Litigation
Compared to conventional foods, which have been barraged with class action suits over “natural” claims, dietary supplements have not been hard hit.  Late last month, however, a plaintiff filed suit against Hammer Nutrition, Ltd. over “natural” claims and other claims used to promote two of the company’s dietary supplements. The plaintiff filed suit in federal … Continue Reading

Ravioli Trees and Tortellini Bushes: What is Considered a “Natural” Food?

Posted in Advertising Litigation, Food and Drug
A new article published by the Food and Drug Policy Forum “Ravioli Trees and Tortellini Bushes: What Should Courts Expect from the Reasonable Consumer When it Comes to “Natural” Claims?’” discusses how in recent years there have been many consumer class action cases alleging that advertisers are deceptively labeling their products as natural when the … Continue Reading

Audio Conference Event: Tips for Reducing Class Action Litigation Risk following Regulatory Enforcement

Posted in Advertising, Advertising Litigation, Class Action Litigation, Federal Trade Commission, Food and Drug, NAD
The number of consumer class actions filed following regulatory enforcement by the FTC, FDA, or NAD have skyrocketed in recent years.  Consumer products companies – particularly food, dietary supplement, and cosmetic manufacturers – now must consider not just how to respond to a federal or state regulator who is seeking information about their marketing campaign, … Continue Reading

In A Culture Of Instant Gratification, Court Tosses Class Action Regarding Availability of Certain Product Features

Posted in Advertising, Advertising Litigation, Class Action Litigation
On January 29, a California federal judge tossed a putative class action claiming the makers of video game blockbuster “Grand Theft Auto V” misled gamers by marketing online features that weren’t immediately ready, ruling the packaging never promised the features would be available at launch.  In a complaint filed in May 2013, the plaintiffs alleged that … Continue Reading

In Pricing Case, California Court Determines Meaning of “Free” Shipping

Posted in Advertising, Advertising Litigation, Federal Trade Commission, Retail
In the Overstock.com case described in the post yesterday, the plaintiff also argued that Overstock’s representations that shipping was “free” or “only $2.95” violated California’s False Advertising Law because the company factored the full cost of shipping into the underlying product price. The court ruled in Overstock’s favor, determining that the claim was “nonsensical,” and … Continue Reading

California Court Imposes $6.82 Million Civil Penalty in Comparative Pricing Action

Posted in Advertising, Advertising Litigation, Retail
Still recovering from the holiday sales? If you’re a retailer or a manufacturer pricing your own products, don’t forget about the state laws governing promotional pricing and deceptive pricing claims. The state of California certainly hasn’t – on Friday, a California judge issued an almost $6.82 million civil penalty against Overstock.com via a tentative ruling and … Continue Reading

Advertising Law for Dogs

Posted in Advertising, Advertising Litigation, NAD
We’ve previously discussed principles to consider when advertising foods, drinks, and supplements. A decision issued by the NAD last week gives us an opportunity to see how those principles play out in ads for pet supplements. In that case, the maker of Greenies dental treats for dogs challenged various health-related claims made by the makers … Continue Reading

​Drink Maker Settles Over Misleading Ads​

Posted in Advertising, Advertising Litigation, Food and Drug
​Last week, the New York Attorney General announced a settlement with Abbott Laboratories ​over an advertising ​campaign for its Pediasure SideKicks ​drinks. The AG determined that ​the campaign conveyed the misleading impression that children who ​drink SideKicks are more energetic and perform better in sports than children who don’​t ​drink SideKicks. In the ad, a … Continue Reading

How to Properly Use Establishment Claims in Advertising

Posted in Advertising Litigation
“Clinically proven…” “Laboratory tested.” “45% More Effective!” Claims like these sell product. They also carry with them the assertion that the advertising claim has been “established” or proven by competent and reliable testing. Establishment claims can be express (e.g., “Studies show…”) or implied (e.g., use of a caduceus or images of actors in lab coats). … Continue Reading

FTC Announces Settlements on “No VOC” Claims

Posted in Advertising, Advertising Litigation, Federal Trade Commission, Green Marketing
The Federal Trade Commission (“FTC”) announced settlements with three mattress manufacturers last week that prohibit the manufacturers from making claims that their products are free from volatile organic compounds (“VOCs”) absent competent and reliable scientific evidence. The companies involved – Relief-Mart, Inc., Essentia Natural Memory Foam Company, Inc., Ecobaby Organics, Inc. – are all alleged … Continue Reading

NJ Federal Court Dismisses False Advertising Class Action Alleging a Lack of Substantiation

Posted in Advertising Litigation
Last month, in Gaul v. Bayer Healthcare LLC, the U.S. District Court for the District of New Jersey dismissed a class action lawsuit predicated on a National Advertising Division (“NAD”) decision that found that substantiation for Bayer Healthcare’s labeling claims was unreliable. The District Court relied heavily on a 2010 Third Circuit decision – Franulovic … Continue Reading

NAD Recommends Changes to a Price-Matching Claim

Posted in Advertising, Advertising Litigation
The NAD recommended that Toys “R” Us modify or discontinue its price-matching claim: “Price Match Guarantee — Spot a lower advertised price? We’ll match it.” The claim was accompanied by a disclosure informing consumers to “see a Team Member for details.” A consumer complained after store employees informed him of limitations to the guarantee. Toys … Continue Reading