In a published ruling, the Ninth Circuit recently held that a company potentially stated a claim for false advertising under the Lanham Act when it alleged that a product review site had significant undisclosed financial connections to a competitor while purporting to be independent. In Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107 (9th
Thomas Tobin’s practice focuses on complex commercial litigation and class action matters involving statutory, constitutional, and regulatory issues in a range of industries, including food and beverage, consumer packaged goods, and cannabis. In the food and beverage sector, Tommy has experience defending false advertising claims and consumer protection claims for well-known international corporations.
California Proposes New Short-Form Prop. 65 Warning Labels
On January 8, 2021, California’s Office of Environmental Health Hazard Assessment (OEHHA) announced proposed regulations that would significantly affect how businesses selling to California consumers may use short-form Proposition 65 warnings on their products. These proposed regulations, if finalized, may create new compliance obligations and will likely decrease the use of the short-form Proposition 65…
Notable Ruling: No Jury for False Advertising and UCL Suits, California Supreme Court Rules
California courts remain a top forum for food litigation matters. So many matters are heard in the Northern District of California that it has gained a reputation as the “Food Court.” Now, the California Supreme Court has held that two of the state’s most widely used consumer protection statutes must be tried by a judge rather than a jury.
California’s False Advertising Law (“FAL”), codified at Cal. Bus. & Prof. Code § 17500 et seq., and the Unfair Competition Law (“UCL”), codified at Cal. Bus. & Prof. Code § 17200, et seq., represent two of the most common vehicles for plaintiffs to bring suits alleging false product claims or purported misrepresentations on food labels.
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More FTC Civil Enforcement for COVID-19 and CBD Cancer Treatment Claims
On April 28, 2020, the FTC announced a preliminary order in a civil enforcement action against a supplement manufacturer that allegedly made false and unsubstantiated claims regarding COVID-19 and cancer. Specifically, the FTC alleged that Whole Leaf Organics had marketed its “Thrive” product as an “anti viral wellness booster” that treated, prevented, or reduced the risk of COVID-19. The FTC also alleged that Whole Leaf Organics marketed three products containing cannabidiol (CBD) as effective cancer treatments.
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Industry Insights: Consumer Products Companies Reconfiguring Production Lines to Meet New COVID-19 Needs
Consumers’ response to COVID-19 has led to increased demand for personal protective equipment and other much-needed supplies to aid consumers and healthcare professionals in the fight against the disease. Alcohol-based hand sanitizer is one such product, with the U.S. Centers for Disease Control and Prevention recommending hand sanitizers when soap and water are not available. The FDA has issued recent guidance intended to provide “flexibility” for manufacturers and increase the supply of alcohol-based hand sanitizer in the marketplace.
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FDA & FTC Issue Warning Letters Regarding Unsupported COVID-19 Claims
The FDA and FTC recently issued joint warning letters to seven sellers of products that claimed to treat or prevent “Novel Coronavirus Disease 2019,” known as COVID-19.
According to FDA Commissioner Stephen Hahn, “The FDA considers the sale and promotion of fraudulent COVID-19 products to be a threat to the public health.” FTC Chairman Joe…
Talcum Powder Case Settles Midtrial
On January 6, 2020, a California state court judge announced that a case against Johnson & Johnson related to allegations that its talcum powder products contained asbestos had settled midtrial. The details of the settlement were not immediately available.
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FTC Settles Two Cases of Alleged Fake Reviews and Online Influence
On October 21, 2019, the Federal Trade Commission (FTC) announced that it had settled two cases regarding alleged fake indicators of social media influence and fake product reviews.
In the first action, the FTC alleged that Devumi, LLC and its CEO had “sold fake indicators of social media influence, including fake followers, subscribers, views, and likes, to users of different social media platforms, including LinkedIn, Twitter, YouTube, Pinterest, Vine, and SoundCloud.” These fake indicators were designed to make the influencers more attractive to businesses and individuals hiring the influencers or making purchase decisions related to the influencers (e.g., the more followers or engagement associated with the influencer, the higher fees a business might pay to engage them or more value consumers might give their opinion).
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California Expands Disclosure Requirements Regarding Cosmetics and Hazardous Substances
In late September 2019, California enacted a new law, AB 647, that would impose expanded disclosure requirements on certain cosmetic and disinfectant products. Effective in July 2020, manufacturers and importers of cosmetics and disinfectants that contain hazardous substances, as defined by California’s Department of Industrial Relations (“DIR”), would need to post a safety data sheet (“SDS”) on the entity’s website by the product’s brand or commonly known name. The required SDS must also be translated into Spanish, Vietnamese, Chinese, Korean, and other languages as required by DIR.
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FDA Issues Warning Letters Regarding Adulterated Cosmetics
In September 2019, the FDA sent warning letters to three tattoo ink manufacturers about microbial contamination in the products. The agency conducted microbial analysis of tattoo ink samples collected from customers around the country.
The warning letters noted that the tattoo inks contained pathogens and microorganisms that rendered them adulterated under the Federal Food Drug & Cosmetic Act (FFDCA). The agency regulates tattoo inks as “cosmetics” under the FFDCA because the inks are introduced into the body to “promot[e] attractiveness” or “alter the appearance.” See 21 U.S.C. § 321(i).
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