Judge Edward Davila of the U.S. District Court for the Northern District of California recently dismissed with prejudice a putative class action alleging Walgreens misled consumers into believing its store-brand Infants’ Pain & Fever Acetaminophen is specially formulated for infants.  In dismissing the suit, the court found the product’s labeling would not be likely to confuse reasonable consumers. Eidmann v. Walgreen Co., No. 20-cv-04805-EJD (N.D. Cal. Feb. 26, 2021). The court noted that in…

Minnesota federal district court Judge Patrick J. Schiltz recently dismissed with prejudice an alleged class action claiming that Champion Petfoods misrepresented the quality of its dog food and ingredients by failing to disclose traces of heavy metals and barbiturates. In dismissing the suit, Judge Schiltz found no reasonable consumer was likely to interpret the contested claims as plaintiffs did, and plaintiffs’ attempt to “construct[] a hypothetical ‘reasonable consumer’ with highly artificial, detailed expectations about a…

The Fourth Circuit recently overturned a district court’s decision to apply an analogous state law statute of limitations to bar a claim for false advertising under § 43(a) of the Lanham Act.  In doing so, the Court held that because § 43(a) claims are “equitable in nature,” laches is the applicable timeliness rule, rather than a state law’s statute of limitations.  Belmora LLC v. Bayer Consumer Care AG, No. 18-2183 (4th Cir. Feb 2, 2021)…

A split Ninth Circuit panel recently reversed the dismissal of claims against P.F. Chang’s regarding the chain’s use of the term “krab mix” in the ingredients list for certain sushi rolls. Kang v. P.F. Chang’s China Bistro, No. 20-55138 (9th Cir. Feb. 9, 2021). Plaintiff claimed he purchased P.F. Chang’s “krab mix” sushi rolls because the term “krab mix” led him to believe the rolls contained at least some real crab meat, when in…

The Ninth Circuit recently affirmed the dismissal of a putative class action alleging Diamond Foods engaged in unfair practices, created a nuisance, and breached the warranty of merchantability by including partially hydrogenated oils as an ingredient in Pop Secret popcorn.  McGee v. S-L Snacks Nat’l, Case No. 17-55577 (9th Cir. December 4, 2020). Plaintiff Jacquelyn McGee alleged Pop Secret contains partially hydrogenated oil, “a food additive banned in many parts of the world because…

With more than 100 closed cases, 2020 was another busy year at the National Advertising Division and National Advertising Review Board. Proskauer’s False Advertising Group closely tracks these decisions from the advertising industry’s self-regulation system to stay apprised of the latest developments and trends, and has compiled a guide providing case summaries, with our insights and key takeaways, of key 2020 decisions from the NAD and NARB. This resource, organized by industry, will help advertisers stay…

Judge Cathy Ann Bencivengo of the U.S. District Court for the Southern District of California recently dismissed with prejudice a putative class action alleging that the Omni luxury hotel chain deceptively advertised its hotel room rates on Expedia. In doing so, the Court found plaintiff failed to adequately allege that reasonable consumers would be deceived by Omni’s representations. Charbonnet v. Omni Hotels, No. 20-cv-01777-CAB-DEB (S.D. Cal. Dec. 16, 2020). Plaintiff alleged Omni utilized a…