Anyone who has strolled the supermarket alcohol aisle in recent months may fairly stand in awe of the proliferation of boozy and not-so-boozy drinks in pretty packages, with small cans and pastel colors making it difficult to immediately discern whether they contain alcohol and, if so, how much.  According to Nielsen data, in 2021,

Last month, plaintiffs filed a class action lawsuit against YouTube (and its parent company Google), alleging that the company violates Oregon laws by automatically renewing paid subscriptions to premium music, television, and video streaming services without adequately disclosing the offer terms or getting consent.

Specifically, the complaint alleges that the company violated Oregon’s automatic renewal

In January, we posted that Fashion Nova had agreed to settle an FTC complaint alleging that the company’s practice of suppressing negative reviews on its site “deprives consumers of potentially useful information and artificially inflates the product’s average star rating” in violation of Section 5 of the FTC Act. According the FTC’s complaint, the company

This month’s update kicks off spring with a Best in Show throwback ad comparing dog flea and tick medication, pivots to claims for survivalist ready-to-eat meals (don’t even try to act like you saw that coming), highlights FDA’s recently-issued voluntary recall guidance, provides a food court update on the latest ingredient class actions and cleans

The Pink Tax: A Litigation and Legislation UpdateWe previously reported on an emerging legislative and litigation trend relating to the “pink tax” – a gender-based pricing phenomenon that allegedly results in higher prices for goods and services marketed towards women as compared to substantially similar alternatives marketed towards men.  As predicted, the last two years have shown an uptick in litigation (which has been largely unsuccessful) and legislative action (some finalized and some pending).

Litigation

Last year, we discussed an early blow to the pink tax theory of liability in Schulte v. Conopco, d/b/a Unilever, et al.  In Schulte, the plaintiffs alleged that various personal care manufacturers and retailers violated the Missouri Merchandizing Practices Act (MMPA) by charging more for deodorants marketed for women than allegedly similar deodorants marketed for men.  The product lines at issue contained similar, but not identical, ingredients, came in different sizes, and were available in different scents (fifteen “feminine” scents in the line marketed for women and five “masculine” scents in the line marketed for men).  The Eastern District of Missouri dismissed the complaint, ruling that “Missouri law does not compel identical products to be sold at the same price” and that the plaintiff’s remedy “lies with legislation, not litigation.”  The Eighth Circuit affirmed on the grounds that the plaintiff mistook “gender-based marketing for gender discrimination.”  In order to state a claim, the court ruled that the plaintiff would have to allege that the only difference between the products was the price and the intended target of the marketing.  Here, because the plaintiff conceded that the products were, in fact, different, thus dismissal was appropriate.
Continue Reading The Pink Tax: A Litigation and Legislation Update

Jessica L. Rich and Laura Riposo VanDruff, Two Former Senior FTC Officials Further Bolstering Kelley Drye’s Privacy and Advertising PracticesWe are thrilled that Jessica Rich and Laura Riposo VanDruff have joined the firm’s Privacy and Advertising practice groups. Both attorneys are former top officials at the Federal Trade Commission (FTC), with Rich having served as Director of the Bureau of Consumer Protection (BCP) and VanDruff as an Assistant Director in BCP’s Division of Privacy

The dietary supplement and personal care product space continued to see enforcement on false CBD, COVID, and fertility claims as well as related litigation involving “germ-killing” claims on hand sanitizers and wipes.  Messy stuff…Let’s take a look…

LITIGATION

Personal Care Products

In a blow to the trending “pink tax” theory of liability in consumer class actions, in May, the Eighth Circuit ruled that various personal care product manufacturers and retailers did not violate Missouri’s anti-discrimination laws by charging more for products marketed towards women as compared to allegedly identical products that were either marketed towards men or utilized gender-neutral marketing.  The Court found that the plaintiff “mistakes gender-based marketing for gender discrimination” and, in the process, ignores numerous differences between the products that account for the higher price tag.  There has been a handful of similar “pink tax” cases filed over the last year or two, but this is the first appellate court to rule on the issue.
Continue Reading Dietary Supplement and Personal Care Products Regulatory and Litigation Highlights – May and June 2021