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What’s in a Word? The Legal Battle over “Natural” in False Advertising

By Baldassare Vinti, Jennifer Yang & Evelyn Blanco on June 19, 2024
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Portrait of a beautiful brunette girl who smiles, laughs, brushes her teeth with a red toothbrush on a yellow background. Dentistry. Advertising. Orthodontist. Place for inscription
Diana Polekhina, Unsplash

While class actions centered around “natural” claims remain popular with the plaintiffs’ bar, this past year has seen some growing skepticism from courts towards such lawsuits, particularly where plaintiffs fail to adequately explain what is deceptive about the term.

In January, Judge Kimba M. Wood of the Southern District of New York granted summary judgment to Colgate-Palmolive and its subsidiary Tom’s of Maine in a putative class action challenging the use of the term “natural” on Tom’s toothpaste and deodorant products.  De Lacour v. Colgate-Palmolive Co., No.16-cv-8364 (S.D.N.Y. Jan. 3, 2024).  The Court found that the plaintiff’s evidence was insufficient to demonstrate that a reasonable consumer would understand “natural” to convey that the challenged products do not contain synthetic and/or highly chemically processed ingredients.  The Court dismissed the plaintiff’s surveys as “fatally flawed” because they defined “natural” and “artificial” only in relation to each other (i.e., “natural” as meaning “not artificial”, and “artificial” as meaning “not natural”) and failed to provide respondents with adequate definitions of those otherwise ambiguous terms.  Additionally, when asked what other things the word “natural” communicated, respondents gave responses as varied as “certified organic,” “earthy,” “[n]o animal testing, recyclable,” “[n]o aluminum,” and, “natural.”  Looking at these surveys and other evidence in the record, including the fact that there is no governmental guidance regarding the use of “natural” labeling on personal care products, the Court found that the evidence demonstrated “that there are many interpretations of the word ‘natural,’” and the named plaintiff’s subjective interpretation of the term was insufficient to establish evidence of widespread consumer confusion.

Other cases have followed similar reasoning.  For instance, in McGinity v. Proctor & Gamble, 69 F. 4th 1093 (9th Cir. 2023), consumers sued P&G, alleging that the “Nature Fusion” label on P&G’s Pantene Pro-V hair products misled consumers into believing the items were natural, despite containing synthetic ingredients.  The district court dismissed the complaint, holding that a reasonable consumer would not be deceived by the label.

The Ninth Circuit affirmed the dismissal, emphasizing the ambiguity of the term “Nature Fusion.”  The Court found that this ambiguity was resolved by reading the back label, which clarified that the products contain both natural and synthetic components, rendering the labeling of the product not deceptive as a matter of law.

Given the continued prevalence of lawsuits surrounding “natural” claims, companies should continue to exercise caution in assessing the messages conveyed by such claims in context.  However, if courts continue to recognize the potential ambiguity in “natural” claims, as they have increasingly done over the past year, such claims may finally become a less popular target going forward, given their susceptibility to motions to dismiss and the difficulty of certifying a class.

***

Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at bvinti@proskauer.com /212-969-3249

Photo of Baldassare Vinti Baldassare Vinti

Baldassare (“Baldo”) Vinti heads Proskauer’s Intellectual Property Litigation Group.

Baldo’s practice focuses on litigating patent, false advertising, trade secret, life sciences, trademark and contractual matters in federal and state courts and before the International Trade Commission. He is a seasoned trial attorney responsible…

Baldassare (“Baldo”) Vinti heads Proskauer’s Intellectual Property Litigation Group.

Baldo’s practice focuses on litigating patent, false advertising, trade secret, life sciences, trademark and contractual matters in federal and state courts and before the International Trade Commission. He is a seasoned trial attorney responsible for all aspects of litigation, including Markman hearings, appeals before the Federal Circuit, case preparation and strategy, depositions, motion practice, and settlement negotiations. He has represented clients in high-stakes matters involving a broad range of technologies, including medical devices, diagnostics, immunoassays, prosthetics, pharmaceuticals, dental implants, electronic medical records systems, encryption technology, wound dressings, digital video compression, electronic book delivery and security systems, mobile media technologies, navigation and location-based services, bandwidth management, bar code scanning, lasers , and other technologies. Baldo has represented numerous major corporations, including Arkema S.A., British Telecommunications PLC, Church & Dwight Co., Inc., Henry Schein, Inc., Maidenform Brands Inc., Mitsubishi Electric Corp., Ossur North America Inc., Panasonic Corp., Sony Corp., Welch Foods, Inc., and Zenith Electronics LLC.

In addition, Baldo regularly handles transactional work, including intellectual property due diligence, licensing, intellectual property structural transactions, patentability studies, infringement/non-infringement opinions, and client counseling in intellectual property matters.

Baldo is an author and frequent commentator on patent issues pertaining to medical devices and a host of other intellectual property topics, and has been quoted in the National Law Journal, Bloomberg BNA, Law360, Westlaw Journal and Inside Counsel magazine. He is also a regular contributor of articles published in Medical Product Outsourcing magazine that deal with the medical device industry.

Baldo served as a judicial intern for Hon. John E. Sprizzo of the United States District Court for the Southern District of New York and for Hon. Charles A. LaTorella of the New York Supreme Court.

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Photo of Jennifer Yang Jennifer Yang

Jennifer Yang is a senior counsel in the Litigation Department. She is a commercial litigator with a particular emphasis on false advertising and other intellectual property disputes, including Lanham Act and consumer class action false advertising litigation, advertising challenges before the National Advertising…

Jennifer Yang is a senior counsel in the Litigation Department. She is a commercial litigator with a particular emphasis on false advertising and other intellectual property disputes, including Lanham Act and consumer class action false advertising litigation, advertising challenges before the National Advertising Division, as well as trademark, trade secret and copyright litigation. She has experience representing clients in a variety of industries, including medical device companies, consumer products companies, food and beverage companies, fashion retailers and art foundations.

Jennifer is an author and editor of Proskauer’s advertising law blog, Proskauer on Advertising.

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Evelyn Blanco

Evelyn T. Blanco is an associate with the Litigation Department, holding the distinguished Silver Scholar award from Proskauer. During her Summer Associate secondment, Evelyn interned with NBC Universal, gaining firsthand experience in the dynamic Entertainment Industry.

Evelyn earned her J.D., graduating cum laude…

Evelyn T. Blanco is an associate with the Litigation Department, holding the distinguished Silver Scholar award from Proskauer. During her Summer Associate secondment, Evelyn interned with NBC Universal, gaining firsthand experience in the dynamic Entertainment Industry.

Evelyn earned her J.D., graduating cum laude from Duke University School of Law. Her academic journey included a full-time externship with the District of Columbia Office of the Attorney General’s Antitrust and Nonprofit Enforcement Section, providing her with valuable insights into the inner workings of the legal system. Evelyn’s commitment to pursuing justice further led her to serve as a student attorney in both the Duke Wrongful Convictions Clinic and the Duke Children’s Law Clinic. Additionally, she generously devoted her time to several Pro Bono projects for the Duke Immigrant and Refugee Project.

Before embarking on her legal career, Evelyn spent several years as a paralegal, specializing in Employment and Tort matters. This rich and diverse background underscores her expertise as a professional in the field of litigation.

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  • Posted in:
    Communications, Media & Entertainment, Featured Posts
  • Blog:
    Proskauer on Advertising Law
  • Organization:
    Proskauer Rose LLP
  • Article: View Original Source

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