Misbranded Blog

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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.

“Slack-Fill” Cases Coming Up Empty

Unless you were born yesterday, you know that packaged goods usually contain some empty space in the box, bottle, or bag.  This has been true for as long as there have been packaged goods.  What is relatively new is that consumers—or, rather, a small cadre of specialized plaintiff’s lawyers—are suing over it.  But as Newton said, for every action, there is an equal and opposite reaction.  And the more that lawyers have inundated courts with these suits, the more aggressively courts have responded to shut the silliness down. This post examines the regulatory underpinnings of these so-called “slack-fill” suits and the many bases that courts have found for letting the air out of them.

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All’s Not Well(er) in Pennsylvania: Court Sanctions Defendant For Contact With Putative Class Members

There is nothing inherently wrong with outreach to putative members of an uncertified class—whether by the named plaintiff’s counsel or by the defendant’s counsel.  As the ABA has recognized, “[b]oth plaintiffs’ counsel and defense counsel have legitimate need to reach out to potential class members regarding … information that may be relevant to whether or not a class should be certified.”  ABA Formal Op. 07-445 (2007); see also Austen v. Catterton Partners V, LP, 831 F. Supp. 2d 559, 567 (D. Conn. 2011) (“Both parties need to be able to communicate with putative class members … from the earliest stages of class litigation.”).  Thus, as the Supreme Court has unanimously held, restrictions on pre-certification communication with putative class members must be justified by a “clear record and specific findings” of actual “abuses.”  Gulf Oil v. Bernard, 452 U.S. 89, 101-04 (1981).  And even then, any limitations must be “carefully drawn … [to] limit[] speech as little as possible.”  Id.

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Court Hits “Dislike” On Social-Media Advertising Class Action

The rise of social media has redefined advertising, giving businesses exciting new ways to reach consumers and deliver their messages.  To no one’s surprise, it has also provided new fodder for advertising class actions.  However, as one plaintiff recently learned the hard way, these social-media class actions can founder on the same shoals as their traditional-media counterparts.

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Class Damages Models After Comcast: Rigorous Proof or Expert’s Promise?

In Comcast v. Behrend, 569 U.S. 27 (2013), the Supreme Court held that a plaintiff cannot obtain class certification with an inadequate damages model.  In the years since, courts have diverged over how much a plaintiff must do to satisfy this requirement.  Often, plaintiffs seek class certification with nothing more than a skeletal proposal to develop and perform an analysis at some future point, using information they do not—and might never—possess.  While some courts have found such adumbrative “models” sufficient at the class certification stage, the better decisions require more.  As Comcast recognizes, Rule 23 “does not set forth a mere pleading standard.”  Rather, a plaintiff “must affirmatively demonstrate” through “evidentiary proof” that damages are measurable on a class-wide basis through a common methodology.  Faithful application of that principle obligates plaintiffs and their experts to offer a detailed methodology that is tailored to the facts of the case, and to show that any data that the model requires in fact exists and can be obtained.

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Conjoint Analysis: No Silver Bullet for Calculating Class-Wide Damages

Over the last few years, “conjoint analysis” has become the methodology du jour for false advertising plaintiffs seeking to demonstrate they can calculate class-wide damages.  Conjoint analysis is so named because it is used to study the joint effects of multiple product attributes on consumers’ choices.  At bottom, conjoint analysis uses survey data to measure the strength of consumers’ preferences for particular product features.  Or, put differently, it tries to isolate how much people care about an individual product attribute in a multi-feature product (in a more scientific manner than just asking them directly).

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Compelled Product Disclosures After NIFLA – First Impressions

This is an exciting time for manufacturers on guard against compelled disclosures in their product labeling or advertising.  Late last June, the Supreme Court decided  National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (“NIFLA”), an abortion case with potentially far-reaching effects on the law of compelled commercial speech more generally.  However, as lower courts begin to interpret and apply NIFLA in the context of product disclosures, major uncertainties remain.

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Do “Reasonable Consumers” Read The Ingredient List?

By law, packaged foods and beverages must bear an accurate list of their ingredients “in descending order of predominance by weight.”  21 C.F.R. § 101.4.  Consumers routinely sue food and beverage companies alleging that they were misled about the presence or absence of particular ingredients—even though a mere glance at the ingredient list would have averted any confusion.  Do such plaintiffs have a plausible claim for relief under false advertising laws, or should these claims be dismissed at the threshold?

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When You’re A False Advertiser, But It’s Someone Else’s Fault

Contribution and Indemnity Under The Lanham Act

Many statutes, including the Lanham Act, impose strict liability for false advertising.  Business may therefore incur liability even if a third party was partially or wholly at fault for the challenged inaccuracy.  For example, a cosmetics company that advertises its products as “all natural” may be held liable to a competitor through no fault of its own if an unscrupulous supplier substitutes synthetic pigments for the more expensive natural pigments that the company ordered and paid for.  Similarly, a food company that labels a product as containing “50 grams of protein per serving” may incur liability to consumers if the laboratory it retained to assay its products’ nutritional content botched those tests.

In the olden days, the law was content to leave whichever tortfeasor the plaintiff chose to sue on the hook for the whole tab—even if the chosen defendant was not the truly blameworthy party.  However, “[i]t is now widely recognized that fundamental fairness demands a sharing of the liability” in these situations.

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