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5-Hour Energy: Harbinger of Increased State Activism in the Age Of Trump?

By Sabin Chung on Feb 15, 2017
The Washington State Attorney General’s over two-year pursuit of the makers of the 5-Hour Energy drink ended last week with a court judgment of nearly $4.3 million for violations of the state Consumer Protection Act.


The Ninth Circuit Relies On Reasonable Consumers' Experiences to Dismiss a Cosmetics False Advertising Case

By Dennis S. Ellis, Katherine F. Murray & Margaret N. Buckles on Mar 30, 2016
The Ninth Circuit's decision in Ebner vs. Fresh, Inc. relied on the experiences of the "reasonable consumer" to dismiss a consumer false advertising class action for failure to state a claim.


Self-Regulatory Organization Enforcement Agreements Aim to Increase Transparency in Personalized Ads

By Devon Winkles and Mary-Elizabeth M. Hadley on Nov 06, 2014
Last week, the Advertising Self-Regulatory Council’s Online Interest-Based Advertising Accountability Program released agreements with five website operators addressing their compliance with the Self-Regulatory Principles for Online Behavioral Advertising (“OBA Principles”).


Do Proposed #FDA Pharma Twitter Rules Violate the #FirstAmendment?

By Devon Winkles on Sep 29, 2014
How many warnings can one 140-character tweet contain? Well, under the U.S. Food and Drug Administration’s proposed guidance for pharmaceutical promotion on Twitter and other character-limited platforms such as Google Sitelinks, we soon may find out.


Supreme Court OKs Lanham Act for Food Labeling, Despite FDCA

By Devon Winkles on Jun 13, 2014
Recent years have seen an explosion in food-based litigation. Although most of the litigation has been brought by consumers, on Thursday the Supreme Court opened the door to more litigation among competitors when it ruled that POM Wonderful’s Lanham Act challenge against Cola-Cola was not precluded by the Food Drug and Cosmetic Act (FDCA).


POM Decertification Wonderful for Class Defendants, Not So Sweet for Plaintiffs

By Devon Winkles on Apr 30, 2014
As most pomegranate aficionados no doubt are aware, pomegranates sometimes can be sweet and sometimes a bit tangy. Well, for present and future class defendants in consumer products advertising litigation, POM Wonderful likely is tasting fairly sweet.


“Expectorating” the Shell Doesn’t Spit Out the Liability

By John P. Phillips and Sean D. Unger on Feb 21, 2014
Every once in a while you can envision a judge smiling as he writes an opinion – either because the facts are interesting or because the issues provide an opportunity to spin a phrase that is just too good to pass up. Judge Silverman’s decision yesterday for the Ninth Circuit in Lilly v. ConAgra Foods, Inc., Case No. 12-55921, is one of those opinions.


For Some Disease and Health-Related Claims, Two Trials Is Too Much, Says FTC Commissioner

By Behnam Dayanim and Devon Winkles on Jan 14, 2014
Perhaps one of the most controversial changes in approach at the Federal Trade Commission in recent years has been the agency’s requirements for disease and health-related claims. Now there appears to be some dissent within the agency itself.