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The decision in Kwan v. Sanmedica International, 854 F.3d 1088 (9th Cir. 2017) in April, has occasioned a lot of discussion about the apparent demise of the establishment claim “standard” in California.  What the Kwan decision should have done, but did not, is provoke some hard thinking about what this “standard” is and how we use it.  From the Kwan decision, it is apparent that the Ninth Circuit does not understand where the establishment…
On October 25, the U.S. District Court for the District of Massachusetts dismissed a consumer class action under Massachusetts law, contending that Wesson vegetable oil is falsely labeled “100% natural” because it allegedly is extracted from genetically modified corn, soybean and rapeseed.  Lee v. Conagra Brands., Inc., 1:17-cv-11042 (D. Mass Oct. 25, 2017).  This was an unusually clean case in that there was no other ground challenging the “100% natural” claim and no counts for…
The Food and Drug Administration has made the news lately for disapproving a Massachusetts bakery’s inclusion of “love” among the listed ingredients in its granola products.  Nashoba Brook Bakery produces breads and granolas that are sold in independent markets and fine-food stores in Massachusetts and New Hampshire.  As the FDA primly put it, “‘Love’ is not a common or usual name of an ingredient, and is considered to be intervening material because it is not part…
In a review of new class action cases filed against in 2017, we counted at least 11 actions in the food industry alone alleging that a product was not “natural” or “all-natural” as claimed in its advertising or labeling. “Natural” is, by a healthy margin, the most contested single word in food and personal care products class action litigation.  Why do class action cases around “natural” continue unabated? “Natural” Doesn’t Mean Much … There is…
This week, the news broke that tweets are likely getting longer.  Twitter plans to extend the maximum length of a tweet from 140 to 280 characters, and has already rolled this feature out to selected users.  What are the implications for advertisers, especially those struggling to cope with the need to disclose material connections to endorsers, qualifications to advertising claims, and other information in their marketing tweets? The FTC has already asserted that endorser disclosures…
On September 12, the NAD released its decision in its review of the Capillus82 hair growth device (Case #6107).  This case is unusual in that it addressed a challenge to a prescription-only medical device, and related closely to the FDA’s clearance of that product to be marketed.  The NAD took pains to emphasize that its decision did not contradict the device’s FDA-cleared indication for use, but did it really? First, a little background on how…
Minimum advertised price (MAP) policies are becoming more and more popular.  Especially with the rise of cutthroat competition in the online marketplace, many producers are hearing from their resellers that they want margin protection, and are getting concerned with the possible erosion of their brand equity from widespread promotion of low pricing.  Naturally, many companies have turned to consultants and the internet for information on MAP policies.…
We have blogged about the FTC’s barrage of letters when they were originally released in April and again last week.  Back in May, in response to a Freedom of Information Act request by the National Law Journal, the FTC released the entire set of letters set out in April.  A close review of the letters is instructive about the FTC’s priorities, the types of ancillary issues it is concerned about, and what your letter…
For the first 28 weeks of 2017, the most frequently alleged claims in new food and beverage false-advertising class actions have related to featured product ingredients that allegedly are absent, or present only in small quantities, in the food at issue. We reviewed news reports and other mentions of newly-filed food advertising class actions for the first part of 2017 and tabulated the central cause or causes of action to learn where the current substantive…
Seven crops of pomegranates (and other fruits) have grown, ripened, been picked, pulped and processed.  A river of juice has flowed.  After seven years of litigation, the last overripe fruit of the Lanham Act campaign launched by POM Wonderful against four of its major competitors has hit the ground with a squishy thud. A Los Angeles jury this week absolved The Coca-Cola Company of any wrongdoing in a Lanham Act case brought by POM Wonderful…