Last month, a Seventh Circuit panel unanimously affirmed the district court’s grant of summary judgment dismissing a consumer class action alleging that Fruit of the Earth and its retailer clients deceptively labeled aloe vera gel products. Beardsall v. CVS, 19-1850 (7th Cir. Mar. 24, 2020). Defendants’ aloe vera products are labeled as “Aloe Vera 100% Gel” and “100% Pure Aloe Vera Gel” followed by an asterisk, with a disclaimer stating that the product includes…

Last month, a Fifth Circuit panel vacated in part a judgment in a false advertising case that disgorged the defendant’s profits, awarded corrective advertising damages under the Lanham Act and enjoined the disputed claims. Illinois Tool Works v. Rust-Oleum, 955 F.3d 512 (5th Cir. 2020). The panel held that the plaintiff failed to show the defendant’s profits were attributable to the Lanham Act violation, as is required, and that the plaintiff offered no basis…

A Second Circuit panel recently affirmed the dismissal of a putative false advertising class action against Dunkin’ Brands, which alleged the company misled consumers as to the contents of products Dunkin’ described as “Angus steak.” Chen v. Dunkin’ Brands, 18-cv-3087 (2d Cir. Mar. 31, 2020). The complaint asserted claims under various state consumer protection laws, including New York General Business Law (“GBL”) §§ 349 and 350. The district court dismissed the non-New York plaintiffs…

In a decision that will have repercussions for consumer false advertising lawsuits, a Ninth Circuit panel recently ruled in a Fair Credit Reporting Act (“FCRA”) case that all class members must have standing at the trial stage of a class action for monetary damages. Ramirez v. TransUnion, LLC, 951 F.3d 1008 (9th Cir. 2020).…

A recent decision out of the District of Massachusetts serves as a reminder that a court may consider even a single communication by an advertiser made directly to a consumer to be advertising under the Lanham Act, particularly where the advertiser competes in a limited market. Allscripts Healthcare v. DR/Decision Res., No. CV 19-11038-NMG, 2020 WL 837444 (D. Mass. Feb. 20, 2020).…

The Ninth Circuit recently affirmed the district court’s dismissal of an action brought against YouTube and Google by a non-profit educational and media organization alleging a violation of the First Amendment and false advertising under the Lanham Act, as well as various state law claims.…

National Beverage Corporation, the maker of the popular LaCroix sparkling water products, failed to obtain Rule 11 sanctions against a consumer plaintiff, but ultimately scored a major victory recently, when the plaintiff not only withdrew her lawsuit, but also took the remarkable step of publicly retracting her claims alleging that LaCroix “all natural” and “100% natural” marketing and labeling was misleading. The proposed class action, Rice v. National Beverage Corp. d/b/a LaCroix Sparkling Waters, No…