Key Updates in False Advertising Litigation

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At an ANA Law Virtual One-Day Conference in July of 2022, Seyfarth Shaw LLP offered numerous observations on the ways that different false advertising claims have been litigated recently, providing citations for relevant cases, some of them ongoing.

Key Takeaways

Geographic origin cases: Seyfarth Shaw explained that packaging that includes evocative images of a foreign place do not breach the legal demand for honesty regarding the place where a product was manufactured. Using French language on the packaging of "L'Oréal Paris" would not mislead a reasonable consumer into assuming that the product was made in France; such packaging is in keeping with the product of a company with a French heritage (Eshelby v. L'Oréal S.D.N.Y.).

Environmental Marketing Claims

  • It is important for companies to not overstate their claims and to make clear disclosures about what factors are weighed in their assessment of sustainability. It is also important for companies conduct those assessments accurately (Dwyer v. Allbirds, S.D.N.Y.).
  • Citing a third-party certification to corroborate ESG and sustainability claims can actually impose a heavier burden on marketers as to the truthfulness of their claims, since a reasonable consumer would infer from such certifications that the companies sustainability efforts are substantial (Walker v. Nestle, S.D. Cal.).

Ingredient Claims

  • A reasonable consumer can be counted on to not confuse claims about flavor with claims about ingredients. The image of a strawberry on a Pop-Tarts box would not be interpreted to imply strawberry as an ingredient when no claims about the amount of strawberry in the product are made (Chiappetta v. Kellogg Sales Co., N.D.Ill.).
  • Health claims made by a product may be falsified by the amount of sugar they contain (Johnson-Jack v. Health-Ade, N.D. Cal.).

Trends in Competitor Litigation

  • Allegations of false association and false advertising are governed by two different legal standards, per the Lanham Act. Nonetheless, claims of false association that should actually be claims of false advertising have recently been surviving dismissal when they shouldn't be (Fireblok IP Holdings, LLC v. Hilti, Inc. and RectorSeal, LLC; ISK Biocides, Inc. v. Pallet Machinery Group Inc. and J&G Manufacturing LLC).
  • Contributory false advertising was first recognized as an offense by the eleventh circuit. Not all circuits have followed suit, but some, such as the fourth circuit, have (ISK Biocides, Inc. v. Pallet Machinery Group Inc. and J&G Manufacturing LLC).

CLE Materials

Source

"Key Updates in False Advertising Litigation." Jeremy Schachter, senior associate at Seyfarth Shaw LLP; Joseph Orzano, partner at Seyfarth Shaw LLP. ANA Law Virtual One-Day Conference, 7/27/22.

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