Even though 2020 was an eventful 12 months in the globe of marketing law, it feels wrong to commence any form of “year in review” without acknowledging the world-wide activities of this year, and the difficulties they have brought to just about every individual in 1 way or an additional. In our role, we are frequently in a position of criticizing or defending from criticism the marketers who build the content material at the middle of our do the job. But, ideal now, we would like to choose a instant to rejoice and congratulate them for a 12 months used capturing the tone of the situations with sensitivity, insight, and just the suitable total of humor, which include the challenges of doing work from property, our newfound sense of accountability in not likely anywhere, the relevance of uplifting and supporting each other, and the actuality that we simply cannot wait around to end our romance with 2020. And, amidst all the problems, we would like to remind every person that 2020 also introduced us Some Great Information.
We search forward to a much better 2021, and to observing all those of our visitors who are outdated buddies in human being once more and meeting other people for the very first time. In the meantime, let’s chat about this year’s essential developments in promoting law…
The appellate courts didn’t skip a defeat this calendar year, issuing quite a few vital conclusions in the world of class steps:
In California, we noticed several unsuccessful makes an attempt to rescue normally deficient pleadings by adding allegations associated to client surveys that purported to show customers were being misled by a defendant’s promotion. Time and time all over again, in dismissing promises relevant to Mott’s applesauce, Ghirardelli baking chips, and Westbrae soymilk, the Northern District of California reaffirmed that client surveys by itself do not make plausible an allegation that reasonable consumers are misled where by the complaint has not if not plausibly alleged deception.
Every year provides its possess set of new and at any time more imaginative theories of wrong promotion. This calendar year was no various, with selections that solved a plethora of exciting (albeit unsuccessful) allegations of deception:
In a scenario versus SeaWorld, the Northern District of California uncovered the (human) plaintiffs unsuccessful to reveal standing to defend the legal rights of orca whales via untrue marketing claims.
The District of Vermont dismissed wrong promoting claims from a consumer let down that Ben & Jerry’s ice cream is allegedly not, in point, designed completely from milk sourced from “happy cows” and “Caring Dairy” farms.
The Southern District of New York reminded us that promises that a seller’s products and solutions are “premium” or “the best” are mere puffery, and absolutely can not be made use of as a backdoor to complain about Starbucks’s alleged use of pesticides.
When condemning the exploitation of kids in the cocoa bean offer chain, the 1st Circuit affirmed a sequence of choices holding that chocolate companies’ failure to disclose info about upstream labor abuses on products packaging did not constitute unfair or deceptive enterprise practices underneath Massachusetts law.
The Jap District of New York threw out another cocoa declare, discovering plaintiffs unsuccessful to plead that the labeling of Oreo cookies with the statement “Always Produced With Authentic Cocoa” was misleading, in which plaintiffs did not dispute that Oreos do include cocoa, but instead took situation with the simple fact that the cocoa was allegedly refined through an alkalizing process.
The Seventh Circuit affirmed the dismissal on summary judgment of promises that Fruit of the Earth’s aloe vera products were being deceptively labeled as “Aloe Vera 100% Gel” and “100% Pure Aloe Vera Gel. ” The Court docket observed (amid other points) that plaintiffs unsuccessful to show that consumers interpreted these claims to necessarily mean these products have been of “high quality” or “especially efficient,” and the inclusion of stabilizers and preservatives in the goods did not make these promises deceptive.
The Second Circuit affirmed the dismissal of promises that Dunkin’s “Angus Steak” merchandise had been deceptively marketed to trigger individuals to think they contained an “intact” piece of meat, when they were being in fact ground beef patties with additives. The Court famous that the advertisements at situation incorporated zoomed-in visuals plainly demonstrating the beef patty, and reasonable buyers paying for a $2-4 grab-and-go sandwich would not be misled into imagining they were being getting an unadulterated, intact piece of meat.
The Southern District of Florida found that Burger King’s promise of a non-meat patty in its plant-primarily based “Impossible Burger ” did not constitute a assure that the burger would be well prepared individually from meat items. The court took it a phase further more, also granting Burger King’s movement to deny class certification at this early pleading stage, crediting Burger King’s argument that just about every buyer has distinctive personalized tastes for the planning of his or her foods.
In a scenario in opposition to Church & Dwight, plaintiffs alleged that the selection of “loads” stated on OxiClean stain remover labels is misleading since, for some needs other than a typical load of laundry, a lot more than just one load’s value of merchandise must be utilized. The court granted Church & Dwight’s motion to dismiss, concluding that plaintiffs unsuccessful to plausibly allege a reasonable shopper would be deceived by the labels. The court agreed with defendant’s arguments that sensible individuals are not likely to be misled by the challenged claims offered the disclosures made by the OxiClean labels. Proskauer represented Church & Dwight in this subject.
2020 also brought a sequence of “white” non-chocolate statements, with lawsuits filed against quite a few confection makers alleging their “white”-labeled sugary goods deceived acceptable customers into imagining the items have white chocolate, when they do not. The candy gods (i.e., federal district courts) so significantly have not looked favorably on these promises, dismissing promises against Nestle Toll House’s Premier White Morsels, Ghirardelli’s Quality Common White baking chips, and Hershey’s Package Kat White bars.
Nonetheless, getting the cake for most significant variety of course actions filed concerning a single term is almost absolutely the classification of allegedly deceptive “vanilla” claims, alleging that defendants’ “vanilla”-labeled merchandise contain flavoring elements that do not arrive from vanilla beans. Promises against Wegmans vanilla ice product, Westbrae Natural’s Organic and natural Unsweetened Vanilla Soymilk and Blue Diamond’s vanilla almond milk have been dismissed now, and we assume numerous a lot more will comply with.
In a year involving a great deal of Supreme Court drama, wrong advertising and marketing (and trademark) law did not go overlooked at the greatest court in the land:
In Romag Fasteners v. Fossil, 140 S.Ct. 1492 (2020), the Court docket unanimously held that a Lanham Act plaintiff can get well the defendant’s revenue without having proof the defendant acted willfully. That being mentioned, willfulness will nonetheless be an critical part of Lanham Act cases going forward, as the Courtroom indicated it is a suitable variable for disgorgement (plus, a demonstrating of willfulness can entitle a plaintiff to a presumption of buyer confusion).
Several circuit courts issued notable Lanham Act decisions this yr as well:
In the fantastic beer struggle of 2020, the Seventh Circuit reversed a district court’s decision preliminarily enjoining Anheuser-Busch from advertising and marketing that Bud Gentle has “no corn syrup” whilst Molson Coors’s competing Miller Lite and Coors Lite beers are “made with” or “brewed with” corn syrup.
The Fifth Circuit vacated a disgorgement and corrective promotion award in a situation involving windshield water repellant, concluding that the plaintiff failed to display the defendant’s earnings ended up attributable to its bogus promotion, and that corrective marketing constituted an unsupported windfall.
The Ninth Circuit affirmed the dismissal of PragerU’s phony marketing go well with against YouTube and Google, concluding that YouTube’s content material limitations and statements about its moderation guidelines did not represent commercial speech sufficient to assist a Lanham Act declare.
As for notable district courtroom decisions from the past year:
We are closely pursuing the ongoing dispute involving Chanel and The RealReal over the latter’s alleged sale of counterfeit Chanel luggage. Whilst the court docket dismissed Chanel’s trademark infringement assert, it declined to dismiss Chanel’s untrue advertising and marketing claim premised on The RealReal’s promoting statements that the items it resells are “100%” reliable.
The FTC’s Inexperienced Guides have come to be ever more applicable to advertisers about the previous couple many years as purchaser desire for “green” products and solutions increases. This past calendar year observed a couple of issues in this area. Whether it gets to be a emphasis for the FTC alone stays to be seen, but we foresee this could be an location that attracts buyer class actions in the wake of an focus-grabbing NPR investigation. View this place.
This was a active calendar year in the self-regulatory space, with the Nationwide Advertising Division closing nicely around 100 cases. Remain tuned—and make sure you’re subscribed to our blog—for our approaching “NAD 12 months in Review” deep-dive into noteworthy circumstances and tendencies from this earlier yr at NAD and NARB.
© 2020 Proskauer Rose LLP. Countrywide Law Assessment, Quantity XI, Number 12