Category Archives: Advertising Litigation

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Cookies, Promises, and California: Why the 3rd Circuit Revived Privacy Claims Against Google

Gogle CookiesLast week, the U.S. Court of Appeals for the Third Circuit revived several privacy claims against Google pertaining to the Internet company’s practice of side-stepping “cookie blockers” on Microsoft’s Internet Explorer and Apple’s Safari browsers. The Third Circuit found that Google intentionally circumvented “cookie blockers” on Internet browsers by exploiting loopholes found in the cookie … Continue Reading

United States v. Bayer: Preventing or Treating Disease Claims

In recent years, the FTC and the Center for Science in the Public Interest (“CSPI”) seem to have seen disease claims everywhere, regardless of whether the FDA has deemed the same claims appropriate, non-disease structure/function claims.  In the United States v. Bayer Corp., for the second time in recent months, a court called them on … Continue Reading

Fembots and False Advertising

Fembots have plagued humanity for many years. In the 1970s, fembots attempted to seize control of a weather device before they were defeated by the Bionic Woman. And in the 1990s, fembots worked with Dr. Evil until Austin Powers was able to outwit them. Now, they’re back, luring unsuspecting men into cheating on their spouses. At least that’s … Continue Reading

Tenth Circuit Rules that False Advertising Plaintiffs Must Allege Evidence of Implied Falsity and Quantify Damages at Pleading Stage

In a Lanham Act false advertising action by cosmetic surgeons against plastic surgeons – yes, those are two different things – the Tenth Circuit Court of Appeals, in an August 31 opinion, affirmed dismissal of Lanham Act false advertising claims. The Court of Appeals held that the plaintiffs failed to plead a Lanham Act claim … Continue Reading

Lands’ End Requests Dismissal of “Made in U.S.A.” Class Action After Reimbursing Plaintiff

Last week, Lands’ End tried a second time to dismiss a “Made in U.S.A.” class action with the novel argument that, because the company had already reimbursed the plaintiff for the necktie she purchased, she is not injured and lacks standing. As background, in October 2014, plaintiff Elaine Oxina filed the putative class action in … Continue Reading

Contributory False Advertising Liability Is Officially a Thing in the Eleventh Circuit

On August 7, the Eleventh Circuit Court of Appeals, ruling on a question that the Court determined to be one of first impression, has ruled that a cause of action for contributory false advertising can be maintained under Section 43(a) of the Lanham Act. In Duty Free Americas, Inc. v. Estée Lauder Companies, Inc., No. … Continue Reading

FTC Administrative Law Judge Rejects Commission’s Definition of “Biodegradable”

Decision Also Reiterates Appropriate Standards for Consumer Perception Surveys On February 6, 2015, Chief Administrative Law Judge D. Michael Chappell announced his decision (“Initial Decision”) in the case of FTC vs. ECM BioFilms.  The Initial Decision rejects the FTC’s position codified in the FTC’s Guides for the Use of Environmental Marketing Claims (“Green Guides”) that “[i]t is deceptive to … Continue Reading

D.C. Circuit Upholds FTC on POM’s Advertising, Strikes Two-Study Standard

The U.S. Court of Appeals for the D.C. Circuit issued an opinion on Friday, January 30, upholding the Federal Trade Commission’s findings that POM Wonderful’s advertising, in which it claimed that consuming POM Wonderful pomegranate juice could prevent or reduce the risk of heart disease, prostate cancer, and erectile dysfunction, was deceptive. Although the D.C. … Continue Reading

Association of National Advertiser’s Advertising Law & Public Policy Conference — March 31-April 1, 2015

Join Partner John Villafranco at the Association of National Advertisers’ Advertising Law & Public Policy Conference in Washington, DC on March 31-April 1, 2015. Mr. Villafranco’s session, entitled “The Current And Future State Of Advertising Self-Regulation,” will feature the findings of an antitrust law working group formed to examine self-regulation in the advertising industry. The program … Continue Reading

False Advertising Class Action Says Maker’s Mark Whisky is Not “Handmade”

Two purchasers of Maker’s Mark whisky have sued the company, accusing it of falsely advertising the whisky as “handmade”. The lawsuit, filed as a putative statewide class action in California, alleges that Maker’s Mark “promotes its whisky as being ‘Handmade’ when in fact Defendant’s whisky is manufactured using mechanized and/or automated processes, which involves little … Continue Reading

New Jersey Offers Legislation Designed to Address Energy Supply Companies’ Variable Rate Disclosure Practices

In the wake of the unexpected polar vortices and extreme weather that struck the East Coast in early 2014, many state public utility commissions and attorneys general were inundated with consumer complaints relating to increases in energy supply companies’ variable rates.  Regulators took notice, opening investigations and convening public conferences in an effort to understand … Continue Reading

Marketing Consultant May Be Held Liable Under TCPA for Its Third-Party Marketer’s Unsolicited Text Messages

Last Friday, the U.S. Court of Appeals for the Ninth Circuit held that a marketing consultant for the United States Navy – the Campbell-Ewald Company – could be held liable for a third-party marketer’s violations of the Telephone Consumer Protection Act (“TCPA”) arising out of the transmittal of unsolicited text messages. The Navy hired Campbell-Ewald to … Continue Reading

Smooth Sale-ing: Jos. A. Bank Wins Before Seventh Circuit

Late last week, the Seventh Circuit affirmed the dismissal of a putative class action alleging that Jos. A. Bank advertises its normal retail prices as temporary price reductions, in violation the Illinois Consumer Fraud and Deceptive Business Practices Act. The company’s pricing practices, the plaintiff argued, constituted a “fraudulent sales technique.” Illinois law, like most … Continue Reading

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

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

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

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

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

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

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?

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

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?

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