Misbranded Blog

Misbranded is Patterson Belknap’s blog covering false advertising litigation—both consumer class actions and competitor suits—with a particular focus on FDA-regulated products (foods/beverages, pharmaceuticals, cosmetics, and dietary supplements). Writing from the industry perspective, we provide timely updates on important cases, surveys of litigation trends, and in-depth analyses of “hot” legal issues. Our firm pioneered the modern practice of false advertising law more than 40 years ago, bringing the first competitor suits under the Lanham Act. In the decades since, we have continued to practice at the cutting edge, handling many of the field’s most groundbreaking cases on behalf of the nation’s best-known businesses. Today, led by Steven A. Zalesin, our team advocates creatively, strategically, and efficiently on behalf of our clients at all phases of litigation, from pre-complaint demands to Supreme Court appeals.

Burned Again: District Court Dismisses Putative Class Action Alleging Sunscreen Adulteration Due to Lack of Article III Standing

by Dakotah M. Burns and Joshua Kipnees on April 7, 2022

In this age of mass manufacturing, each unit in a product line is usually the same as every other. But manufacturing isn’t perfect. Sometimes, for various reasons, some units in a product line will deviate from the manufacturer’s intended specifications. When this happens, consumer class actions often follow, on the theory that the manufacturer misled consumers by failing to disclose the defect or by selling goods that didn’t conform to the manufacturer’s promises. But these actions pose serious challenges. For one thing, when the alleged defect is subtle (like the inclusion of an extraneous chemical), it can be difficult for the named plaintiff to plausibly plead that her own unit of product was affected. Moreover, when only some units in a product line have the defect in question, determining whether any individual purchaser received a defective unit is an individualized inquiry. This creates a barrier to class certification, which is usually the whole ballgame in consumer protection suits.

Federal Court Wipes Away Challenge to Nivea Lotion on Preemption Grounds

by Dakotah M. Burns and Joshua Kipnees on July 6, 2020

What distinguishes a “cosmetic” from a “drug” under the Federal Food, Drug, and Cosmetic Act (FDCA)? The FDA has struggled to offer clear guidance on the distinction, but the classification as one or the other (or both) carries significant legal and regulatory consequences for manufacturers: a product that is a “drug” needs pre-market approval from the FDA, while a “cosmetic” does not. A cosmetic product that has not received this approval may not represent that, like a drug, it is “intended to affect the structure or any function of the body of man.” 21 U.S.C. § 321(g)(1). Thus, a product that claims to be capable of changing how part of the body works (e.g., “reduces cellulite” or “regenerates cells”), but has not been subjected to this pre-approval process, is considered mislabeled under the FDCA.

Latest Scoop on the “Happy Cows” Lawsuit: Court Dismisses False Advertising Claims Against Ben & Jerry’s

by Dakotah M. Burns and Jane Metcalf on June 1, 2020

Patrons of Ben & Jerry’s ice cream should be familiar with Woody, the bovine mascot touted by the company as “the most interesting cow in the world.” Ben & Jerry’s packaging has long featured cartoon illustrations of Woody grazing beneath blue skies in bucolic green pastures. This past year, however, Woody ambled into the sights of the plaintiffs’ class action bar. Thankfully, she (and Ben & Jerry’s) emerged unscathed: the district court (D. Vt.) dismissed the case at the pleadings stage, affirming both the authority of district courts to dismiss implausible consumer protection claims and the requirement that plaintiffs seeking injunctive relief demonstrate a probability of future injury.

Paradise Lost: Court Dismisses Class Action Alleging Gin “Adulteration”

by Dakotah M. Burns and Jonah M. Knobler on February 19, 2020

Grains of paradise (aframomum melegueta), are a peppery, citrusy spice indigenous to West Africa, related to ginger and cardamom. The name purportedly derives from medieval merchants’ claims that the plant grew only in the Garden of Eden. Common to West African cuisine, grains of paradise are also one of the botanicals sometimes used to give gin its characteristic flavor.

In Florida, however, an obscure 1868 law makes it a third-degree felony to “adulterate[] … any liquor” with certain specified substances, ranging from grains of paradise and capsicum (chili pepper) to potentially deadly opium and “sugar of lead.” Fla. Stat. § 562.455. Some have postulated that this law’s original intent was to prevent consumer deception, as the banned ingredients were once added to liquor to make it taste stronger (more alcoholic) than it actually was. That same practice spurred an 1816 law of Parliament (56 Geo. III, ch. 58) making it illegal for brewers and dealers in beer to possess grains of paradise. Unlike merrie olde England, however, the Sunshine State never got around to repealing its law.