Canadian imported drugs whose origin was disclosed to end consumers couldn't trigger infringement/false advertising liability

AbbVie Inc. v. Payer Matrix, LLC, No. 23 CV 2836, 2026 WL 1846752 (N.D. Ill. Jun. 26, 2026)

Another round in AbbVie’s fight against Canadian imports.

Payer Matrix contracts with employers or an employer’s pharmacy benefit manager (PBM) or third-party administrator (TPA) to help their members access high-cost specialty drugs not covered under an insurance plan, including by assisting them in applying for drug companies’ patient assistance programs (PAP). PAP eligibility is determined by the drug company; it often requires applicants to be insured or underinsured. AbbVie specifically requires the member’s healthcare provider to complete much of the application, “so Payer Matrix follows up with providers to ensure that the applications submitted are timely.” “Payer Matrix disclosed its involvement in these applications to AbbVie and worked with AbbVie representatives as part of its PAP eligibility investigations.” It also “started a biosimilar program to encourage members and their health care providers to explore biosimilar alternatives to brand-name specialty drugs.”

AbbVie didn’t like that PAP lowered its revenue compared to its co-pay assistance program. It described alternate funding providers (AFPs) like Payer Matrix as a “malignant tumor” that “needed to be dealt with strategically and aggressively.” It therefore changed its PAP eligibility requirements to exclude patients working with Payer Matrix.

AbbVie told representatives to say that AbbVie had “updated [its] eligibility guidelines to respond to changes with [the patient’s] insurance provider,” and to say that AFPs “[c]an cause delays to treatment and be highly disruptive to patients, as well as infringing on benefits intended for patients who are uninsured or underinsured.” AbbVie sent denial letters stating that the denial was because AbbVie “believe[d] [the patient’s] insurance provider is, or is partnering with a third-party company to, inappropriately utilize our program instead of their insurance coverage.” Sometimes its representatives speaking to patients went further, telling patients that Payer Matrix was “committing fraud” or “operating illegally,” and directing them to contact Payer Matrix for assistance in paying for their medications. “AbbVie representatives also responded to telephone inquiries from healthcare providers by telling them that ‘Payer Matrix was causing [ ] problems with coverage,’ that Payer Matrix was acting illegally, and that the providers should not work with Payer Matrix.”

Meanwhile, the Patient Access Network (“PAN”), a charitable foundation to which AbbVie donated approximately $100 million in 2023, began speaking out against AFPs and specifically Payer Matrix. (Um. I’m sure they have plenty of legal advice, and of course I don’t expect our tax enforcers to do anything, but how on earth is it legal for AbbVie to give a bunch of money to a charity that it can write off as a donation and then get the money back from the charity, as expected? They should be allowed to write off the cost of the drugs purchased with AbbVie’s money, but that would be a lot less.)

Payer Matrix sued for various product disparagement/advertising torts as well as antitrust and RICO claims. The RICO claims failed because they were RICO claims. The antitrust claims failed because they were antitrust claims (it was antitrust injury that was missing).

Defamation: Illinois recognizes qualified privileges that protect against liability unless the publication was knowingly false or published while entertaining serious doubts about its truth, or the publication was disseminated beyond the proper parties. Some of AbbVie’s communications were protected by qualified privilege, including statements in the online PAP application, letters to denied PAP applicants, talking points provided to call representatives to respond to questions about PAP denials, resulting statements by call representatives, and some AbbVie statements to healthcare providers. Talking points to help AbbVie’s call representatives respond to questions about the instant lawsuit weren’t.

So, for those, knowledge of falsity or reckless disregard was required, or statements beyond the scope of the privilege—the latter was only alleged for a few statements by call representatives who said that Payer Matrix was acting “illegally” or “committing fraud,” and statements to healthcare providers that they should not work with Payer Matrix and that “all of the other [drug] manufacturers” would be following AbbVie’s lead. “The qualified privilege in this case is justified by the need for AbbVie to help patients and their providers understand their eligibility for the PAP. It is reasonable to conclude that statements that Payer Matrix was acting illegally and that healthcare providers should not work with Payer Matrix go beyond the scope of that need.”

As to plausible knowledge of falsity, the talking points allegedly directed AbbVie call representatives to state that AFPs “[c]an cause delays to treatment and be highly disruptive to patients, as well as infringing on benefits intended for patients who are uninsured or underinsured.” “But, Payer Matrix alleges, the delays were not Payer Matrix’s fault, and AbbVie, whose own benefits investigations were the real reason for the delays, knew it. That is enough to plausibly allege that AbbVie made this statement [and similar ones to a healthcare provider] while knowing that it was false.”

It was also plausible that AbbVie knew the falsity of the statement that it “updated [its] eligibility guidelines to respond to changes with [the applicant’s] insurance provider,” since AbbVie had allegedly worked with insurance plans affiliated with Payer Matrix and understood Payer Matrix’s role “since at least 2021,” and thus there were no AFP-related changes to applicants’ insurance plans in 2023 when the terms changed.

In addition, AbbVie plausibly knew of the falsity of statements by its representatives instructing denied PAP applicants to ask Payer Matrix for help with drug coverage, since it knew that wasn’t Payer Matrix’s role in the system.

But AbbVie’s statements about entities “inappropriately” using the PAP weren’t statements of verifiable fact, and so there couldn’t be scienter (or, of course, liability).

Additionally, AbbVie’s talking points explaining its reasons for bringing this lawsuit were non-actionable opinion: that Payer Matrix “misus[ed] patient assistance programs” and that “AbbVie aims to protect [its] programs and patients from [Payer Matrix’s] exploitative tactics.” These weren’t terms with precise meanings, and the context—explaining the lawsuit—bolstered the “opinion” characterization.

However, accusations that Payer Matrix’s conduct was “illegal” or “fraud” were verifiable in context.

Additional barriers defeated some accusations: Alleged statements by AbbVie that it changed its PAP eligibility requirements due to “changes with [the patient’s] insurance provider” were not “about” Payer Matrix. And alleged statements directing members to ask Payer Matrix for assistance with drug coverage were neither defamatory per se nor defamatory per quod. On their face, they didn’t impute commission of a crime, suggest an inability or lack of integrity in performing employment duties, or prejudice Payer Matrix in its trade (per se). Even if, as argued, they implied that Payer Matrix was responsible for paying drug costs but failed to do so, Payer Matrix didn’t plead a connection between its damages and this statement (per quod).

The remaining statements (illegality, fraud, delays) were defamatory per se, and Payer Matrix also alleged “special damages, including loss of contracts with health plans, cessation of referrals from brokers and [healthcare providers], lost profits, and harm to its reputation in the healthcare and health benefits industries,” including a $26 million drop in revenue from a single broker in 2024.

Tortious interference: It wasn’t independently wrongful to refuse to allow PAP participation by members of insurance plans affiliated with Payer Matrix or publish PAP policies and send denial letters that identified Payer Matrix by name. As for the stuff that survived the defamation screen above, AbbVie argued that it didn’t communicate directly with Payer Matrix’s actual clients. But “AbbVie had reason to believe that its comments would make their way back to Payer Matrix’s clients; it would be unreasonable to expect patients to whom AbbVie allegedly accused Payer Matrix of fraud to keep those accusations from their plan administrators or sponsors.” Payer Matrix also made specific allegations about losing specific clients due to AbbVie’s accusations.

Illinois Consumer Fraud Act: The Illinois Supreme Court recently emphasized that in all ICFA claims, the plaintiff must allege that it was the intended target of the alleged deception. Payer Matrix didn’t allege that AbbVie intended for it to rely on any alleged deception or unfairness, but only that it intended to cause reliance by “Members, Plans, PBMs, and TPAs.” So that claim was dismissed.

Illinois Uniform Deceptive Trade Practices Act Claim: The alleged false statements underlying the claim were not made “in the context of false advertising or promotion or a trademark violation.” Payer Matrix was judicially estopped from arguing that the DTPA covered the statements at issue. It defeated certain of AbbVie’s Lanham Act claims, and DTPA claims based on the same conduct, based on the arguments that (1) the Lanham Act is essentially coextensive with the DTPA, and (2) the accused statements were not made in commercial advertising or promotion. It could not now argue that the DTPA covered more than commercial advertising or promotion.

AbbVie also reasserted trademark/false association and false advertising claims based on allegations that Payer Matrix imported or helped import medicines from Canada.

In 2024, Payer Matrix began facilitating the importation of Canadian AbbVie medications in partnership with RxFree4me and RxFree4me’s affiliated Canadian pharmacies. Its advertising describes RxFree4me as its “vendor partner” and makes clear that the drugs are sourced internationally. For plans that participate, each patient gets a form asking them to authorize Payer Matrix to contact the patient’s prescriber and send the patient’s prescription to RxFree4me. “The form also states that the drugs will be dispensed by foreign pharmacies and asks the patient to appoint Payer Matrix as an agent to facilitate the order, including having the product packaged and delivered.”

If the patient completes the form, Payer Matrix asks the patient’s doctor to send the patient’s prescription to one of RxFree4me’s partner U.S. pharmacies, which then works with a Canadian doctor who writes a new prescription copied from the original. That goes to a Canadian pharmacy for filling and shipment. “Payer Matrix monitors and facilitates the shipments, including by contacting patients to confirm that they received the shipments.”

There are alleged differences between the two countries’ drugs, primarily FDA approval versus approval by Health Canada; packaging instructions with either a US or Canadian number to report side effects; and contact information for either a US or Canadian patient support program. “Some Canadian AbbVie labels include temperature ranges in Celsius, and dosage information for children and adolescents based on their weight in kilograms, whereas the U.S. AbbVie labels list temperatures in Fahrenheit and give weights in pounds.”

AbbVie also alleged that there were differences in how the drugs are shipped: Payer Matrix’s method uses third-party carriers that AbbVie hasn’t approved. “[B]ecause international shipping routes regularly exceed the storage temperature ranges for AbbVie’s medications, AbbVie ships its medicines in sealed, temperature-controlled containers and requires its authorized distributors to follow specific temperature-related guidelines during storage and transport.” However, it was unable to ensure that the shippers used by Payer Matrix comply with these requirements. Also, recalls are region-targeted, so U.S. patients would be alerted to recalls for drugs that they bought in the U.S., but not for drugs that they bought in Canada.

Even assuming that this was a “gray-market” case, AbbVie’s claims failed. Such cases find confusion only if there’s a material difference. Note: They should also fail if the consumer knows what she’s getting, even if it has a material difference! Maybe there can be unfair competition without competition, but there shouldn’t be trademark infringement without confusion.

And indeed, the court concluded that AbbVie needed to allege facts “plausibly showing that consumers would be confused by differences between the foreign and domestic products.” The court concluded, once again, that “[i]t is no secret that RxFree4Me sources drugs from Canada,” and “it should be obvious to Payer Matrix’s members that the imported drugs do not undergo U.S. regulatory processes because they are sourced from Canadian pharmacies.” Plan members fill out an authorization form that represents that the medication will be “dispensed by the foreign Pharmacy.” The form also authorizes Payer Matrix—not AbbVie—to facilitate the international order, “including by packing the Product and delivering it to the patient.”

“The differences that AbbVie cites are exactly the differences that Payer Matrix’s customers would reasonably expect from medications purchased internationally.” Even the shipping quality controls argument was “obviated by the fact that Payer Matrix members seeking non-U.S. drugs authorize Payer Matrix (that is, not AbbVie) to facilitate packing and delivery.” These differences could therefore not be material. (That’s not how I would have said it, but it fits with an empirical definition of materiality: We know that the differences weren’t material to the consumers who ordered the foreign drugs because they knew they were foreign drugs shipped by Payer Matrix.)

So nice to see: “To be sure, many of the cases suggest that the types of labeling, compliance, and quality control issues alleged here can be material in certain circumstances. But none of those cases involve the type of informed purchase at issue here.” There was no allegation here of counterfeiting, and the disclosures were made to end users, not intermediaries.

What about confusion by subsequent purchasers?  “That rationale holds up for the types of extremely expensive durable goods at issue in [cases involving farm equipment], but it does not make sense here, where Payer Matrix’s members purchase consumable medications.”

Nor were the differences as significant as those in Novartis Animal Health US, Inc. v. Abbeyvet Exp. Ltd., 409 F. Supp. 2d 264 (S.D.N.Y. 2005), where, a website sold British-market pet medications to U.S. consumers. “Even assuming the consumers in that case knew that they were purchasing medications intended for the British market, the differences were so significant that U.S. consumers would likely be confused by the British product. For example, the U.S. versions of the pills were flavored, and the British versions were unflavored; the British versions were also sold in different dosages.” Those differences would be material, unlike converting from pounds to kilograms. “And unlike the differences at issue here that are inherent to the differences between the Canadian and U.S. pharmaceutical markets—such as regulation by Canadian rather than U.S. regulatory bodies, and use of the metric system—there is nothing about the British pet medication market that would make a U.S. consumer expect to receive an unflavored medication when they were used to buying flavored medications from the same brand.”

advertising injury policy covers Lanham Act/intentional interference claims even though policy uses different words for the torts

IntermediaryEd v. Cincinnati Ins. Co., 2026 WL 1847615, No. 3:25-cv-00038-SHL-HCA (S.D. Iowa, May 20, 2026)

The court introduces the case:

After filing a lawsuit against a competitor in Tennessee, Plaintiff IntermediaryEd (formerly known as “ACT”) sent letters to two of the competitor’s customers making disparaging statements about the competitor’s products. This was a bad move. The competitor brought counterclaims under the Lanham Act and for intentional interference with business relationships, and ACT ended up on the wrong end of a multimillion-dollar jury verdict.

Its commercial general liability policy covered “personal and advertising injury” arising out of the “oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or service.” Thus, ACT was entitled to defense and indemnity coverage for both the Lanham Act and intentional interference claims.

But there was an important caveat: The policy contained exclusions for “knowing violation of rights of another” and/or “material published with knowledge of falsity,” and the court couldn’t conclude as a matter of law that ACT lacked such knowledge. Thus, ACT wasn’t entitled to partial summary judgment on that issue.

The jury in the underlying case was instructed on the elements of a Lanham Act claim, including commercial advertising and promotion, and on the elements of intentional interference with business relationships, which required “improper means,” including “conduct such as violation of statutes, regulations, or laws. Violence, threats or intimidation, bribery, unfounded litigation, fraud, misrepresentation, or deceit, defamation, duress, undue influence, misuse of insider confidential information, or breach of its fiduciary relationship.” The jury instructions continued that punitive damages “are reserved for egregious conduct” and should be awarded only if WIN “has shown by clear and convincing evidence that the defending party has acted intentionally, recklessly, maliciously, or fraudulently.”

The jury awarded damages ACT in the amount of $218,000 for false advertising under the Lanham Act and $5,400,000 for intentional interference with business relationships, additionally finding that punitive damages should be awarded, though not setting an amount.

The instructions continued (cleaned up):

A person acts intentionally when it is the person’s purpose or desire to do a wrongful act or to cause the result. A person acts recklessly when the person is aware of but consciously disregards a substantial and unjustifiable risk of injury or damage to another. … A person acts maliciously when the person is motivated by ill will, hatred, or personal spite. A person acts fraudulently when (1) the person intentionally either misrepresents an existing material fact or causes a false impression of an existing material fact to mislead or to obtain an unfair or undue advantage, and (2) another person suffers injury or loss because of reasonable reliance upon that representation.

ACT ended up reaching an out-of-court settlement with WIN (which was redacted), and thus the jury never rendered a verdict on the amount of punitive damages to award.

CIC argued for a formalistic interpretation: “if WIN did not recover on theories of slander, defamation or disparagement, then coverage must be denied, period.” The court disagreed. Coverage can exist when liability is founded on a different legal theory than the one in the policy but that involves “identical conduct” by the insured to what would be covered, as long as the policy does not limit coverage to specific tort names and specify the formalistic labels that govern. Here, the relevant policy language was “simply too broad” to be formalistic:

By covering injuries for “personal and advertising injury” that arise out of the “oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services,” the CGL Policy includes coverage for tort claims that arise out of false and disparaging statements about a competitor’s goods, products, or services, regardless of the label attached to those claims. In other words, the policy covers “causes of action for product disparagement or one that is analogous.”

This conclusion made sense because “courts use a wide range of terminology to describe commercial tort claims arising out of the ‘oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services.’” Relevant labels include “disparagement,” “product disparagement,” “trade libel,” “slander of goods,” “injurious falsehood,” “product defamation,” “commercial disparagement,” or “trade defamation.” “Regardless of the terminology, the gist of these claims is the same: ‘a party publishes material derogatory to another’s business, intending to prevent others from dealing with plaintiff.’” All these torts fell within the scope of the coverage, “regardless of the exact terminology used in the underlying litigation.” And sometimes, as here, an intentional interference with business relationships claim will also fall within the scope of coverage, because of the “improper means” element of business interference torts: a plaintiff can prove improper means in the form of trade libel or commercial disparagement. Indeed, “[t]rade libel and product defamation” are “born of the cause of action for unlawful interference.”

Likewise, “claims under the Lanham Act sometimes revolve around trade libel or commercial disparagement in the form of false advertising regarding a third party’s goods, products, or services. Many courts even characterize such claims as ‘product disparagement under the Lanham Act’ or similar verbiage.”

Thus, ACT was entitled to indemnity coverage as a matter of law, subject to the exclusions. It didn’t matter that the underlying counterclaimant proved only pecuniary losses in the underlying litigation, not “reputational harm.” Indeed, in the commercial context, pecuniary losses are a form of reputational injury: “there is arguably no better way for a business to show that its products have become ‘lower in esteem or reputation’ or ‘lower in rank’ than to prove that customers stopped buying them.” Anyway, the policy language clearly contemplated commercial torts, not just invasion-of-privacy and defamation-type torts in the personal sense.

It was also clear that the underlying verdict was based on covered claims; even though both the Lanham Act and intentional interference can be broader than product defamation (etc.), the underlying litigation’s specific theories were all based in these business torts.

What about the exclusion for “knowing” falsity? It doesn’t automatically apply to claims for which something less than “knowledge” is sufficient to establish liability. “For example, the exclusion does not necessarily apply to defamation claims because they can be established through evidence that a false statement was made with reckless disregard for the truth.” Thus, further development of the record was necessary to determine whether ACT’s conduct was “knowing” in the way contemplated by those exclusions. “The fact that [the underlying plaintiff] established the elements for an award of punitive damages does not change this conclusion, although it undoubtedly strengthens CIC’s position,” given that the instructions didn’t require intent: “As phrased, the instruction allows punitive damages based on something less than ‘knowing’ conduct.”

"hypoallergenic" plausibly means "free of ingredients likely to sensitize the skin"

Novick v. Unilever U.S., Inc., 2026 WL 1879145, No. 25cv4804 (EP) (JBC) (D.N.J. Jul. 30, 2026)

The court mostly allows claims that the “hypoallergenic” and “sensitive skin” representations on Unilever’s Dove Sensitive Skin Body Wash are false and misleading because the body wash contains ingredients that are known skin sensitizers that cause allergic reactions under New Jersey, New York, and California law. According to the complaint, “[t]he scientific and regulatory definition of a skin sensitizer is a substance that causes sensitization by skin contact in a substantial number of persons based on human evidence or appropriate animal testing.”  

A skin sensitizer “may elicit an allergic response at concentrations smaller than 0.1% in individuals who are already sensitized to the chemical,” making the “entire product mixture” a skin sensitizer. Allegedly, a “product that is a skin sensitizer is not hypoallergenic and is not suitable for sensitive skin,” although there’s no FDA regulation defining the terms.

“Like similarly situated consumers,” plaintiffs allegedly do “not know the identity of every ingredient” to which their families “are allergic ... [and do] not know [to] which ingredients” they or their families “may develop an allergy,” but the Dove product allegedly contains at least six skin sensitizers in amounts “that can be reasonably expected to induce an allergic response in a significant number of people, and especially so in the [Product’s] intended customer base.” Consumers allegedly expect a product labeled as “hypoallergenic” to contain no skin sensitizers that could elicit an allergic response in sensitized individuals.

Notably, Dove brand Sensitive Skin Body Bar allegedly “contains neither fragrance chemicals nor a ‘hypoallergenic’ representation on its label and packaging,” and Kroger’s “copycat” sensitive skin bodywash—marketed as comparable to Dove’s—declines to claim it is “hypoallergenic” anywhere on its front label.

On standing, plaintiffs properly pled a price premium theory of economic injury. Plaintiffs identified two cheaper comparators: Dove’s own non-hypoallergenic Sensitive Skin Body Bar and the Kroger Copycat explicitly as a “compare to” alternative.  “A store brand marketed as the cheaper equivalent is, almost by definition, a comparable, cheaper product.” Plaintiffs didn’t need to specify the exact value of their economic injury at the pleading stage.

In addition, “hypoallergenic” etc. was plausibly misleading. The court found the relevant state consumer protection laws to apply “substantially the same” standards, though they “diverge in how much a plaintiff must show at the pleading stage”:

At the pleading stage, the NYGBL and the CA Consumer Laws both require allegations that “a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” But unlike the NYGBL and the CA Consumer Laws, the NJCFA treats “capacity to mislead” as the “prime ingredient” of consumer fraud and does not have the “significant portion” requirement.

Necessarily, a claim that survives under NY/CA misleadingness would survive under NJ law as well.

Unilever alleged that “hypoallergenic” couldn’t mislead anyone because the word is inherently relative and “not an objective guidance about the specific amount of any ingredient in a product.” The prefix “hypo-” means “less than,” not “zero.” The court disagreed that this prevented reasonable consumers from being deceived. Plaintiffs plausibly alleged that:

“hypoallergenic” and “sensitive skin” communicate to reasonable consumers that the Product: (a) is not itself a skin sensitizer; (b) will not cause irritation, corrosion, or contact dermatitis when used as directed by intended users; (c) does not contain significant amounts of ingredients known to cause such reactions in intended users; and (d) does not contain sensitizers in amounts reasonably expected to induce allergic responses in significant numbers of intended users or sensitized individuals.

That the FDA has declined to define “hypoallergenic” and lets companies decide its meaning was not dispositive. “Unilever’s authorities do not coalesce around a common definition of ‘hypoallergenic.’ That is the hallmark of an ambiguous term—not a settled one.” The court declined to decide on a meaning at this stage.

In addition, “labeling could also be ambiguous if consumers would not understand the label’s representations at face value.” This is the newly emerging consumer protection law meaning of ambiguity: “[A product’s] front label is not ambiguous simply because it is susceptible to two possible meanings; a front label is ambiguous when reasonable consumers would necessarily require more information before reasonably concluding that the label is making a particular representation” (emphasis added). This is the ambiguity “that governs whether a court may look past the front label to the back. The front label here makes a definite representation that the Product is suited for sensitive skin and, as hypoallergenic, will not provoke the reactions that non-hypoallergenic products may.”

The complaint also sufficiently pled that this was in fact misleading. It identified a recognized scientific and regulatory threshold—0.1%—above which a sensitizing ingredient is classified as a skin sensitizer. Citing Unilever’s own Safety Data Sheet, it alleged that the product contains cocamidopropyl betaine, the American Contact Dermatitis Society’s “Allergen of the Year” in 2004, at a concentration of 1 to 10%. Plaintiffs also alleged the presence of five other skin sensitizers, including fragrance chemicals, which are allegedly a leading cause of allergic contact dermatitis according to the American Academy of Dermatology. Other ingredients—citric acid, glycerin, and sodium benzoate—were allegedly recognized or classified as skin sensitizers shown to cause allergic reactions on contact, and several were classified as skin and eye irritants.

Plaintiffs didn’t need to allege laboratory testing under these circumstances, including that the product was “a mass-produced, fixed-formula body wash.”

The presence of Amazon consumer reviews reporting reactions also mattered, though the court considered them not for their truth or as evidence of how the public understands the term “hypoallergenic.”  Although 87% of reviews submitted by Unilever gave the product five stars, that proved little. “That most buyers are satisfied does not establish, as a matter of law, that the label does not mislead people with sensitive skin—the actual consumers whom the ‘significant portion of ... targeted consumers’ standard exists to protect. Consumer fraud could still be plausible despite high product satisfaction” (citing Lanham Act cases accepting 15% and lower confusion).

Nor did the back label, even if consulted, cure the front’s alleged misrepresentation. Here, “reasonable consumers would not require more information before reasonably concluding that the front label [of the Product] was making a specific representation.” “And importantly, requiring a consumer to know the ‘properties, origins, and effects on the skin’ of each listed ingredient in the Product’s back label is ‘plainly untenable.’” The court believed that each of the relevant jurisdictions would so hold (as do I).

Nor were plaintiffs required to allege that they suffered allergic reactions as a result; that wasn’t their theory of deception/harm.

The court then kicked out NJCFA omission claims, but not NJCFA affirmative misrepresentation claims. “To establish an act of omission under the NJCFA, ‘plaintiff must show that defendant (1) knowingly concealed (2) a material fact (3) with the intention that plaintiff rely upon the concealment.’ ” Intent can be alleged generally but must still be plausible.

Plaintiffs alleged that Unilever had knowledge because of: (1) Unilever’s website; (2) the Product’s Safety Data Sheet; and (3) negative reviews posted to the “Dove store” on Amazon. While Unilever’s website acknowledges that “a selection of ingredients used in fragrances have the potential to cause skin allergies in some individuals,” it explains that Unilever discloses its fragrance ingredients “for transparency and to help you make informed choices.” “That statement is candor, not knowledge of falsity or concealment.”

Likewise, the Safety Data Sheet’s statement about chemical concentration was not knowledge of its alleged falsity. “A manufacturer that reasonably reads ‘hypoallergenic’ to mean ‘less’ would not knowingly conceal the alleged misrepresentation by selling the product. And the negative reviews didn’t provide knowledge because plaintiffs never alleged that “Unilever operates the Dove store, monitors Amazon, or receives notice of those reviews.” More generally, “Internet postings, standing alone, do not impute knowledge to the manufacturer without facts indicating that the manufacturer ‘viewed or would have viewed those websites’ or ‘monitored third-party website complaints.’” Pleading monitoring or reporting lines, cy contrast, can support an inference of knowledge.

New York statutory claims survived. California UCL & FAL claims failed, though a CLRA claim survived, because the remedies for the first two are equitable and plaintiffs didn’t plead that they lacked an adequate remedy at law.

The implied warranty claim survived in California and New Jersey; even though it could clean the skin, it was plausibly unfit for ordinary use because it couldn’t be used for the “purpose of being a body wash suitable for sensitive skin,” which was the purpose for which it was sold. After all, just “because a car can be driven does not mean it is merchantable.” Express warranty claims survived in all jurisdictions.

Unjust enrichment survived, but not common-law fraud and fraudulent concealment, given the failings on scienter above.

INTA report on AI and likely confusion analysis

 INTA's press release is here. INTA was kind enough to invite me to the launch as press. I'm still digesting overall but the most interesting comment was about consistency: One panelist suggested that AI's effect on this "hobgoblin of small minds" (my reference, not theirs) could be more about public perception than actual outcomes. Right now lots of people complain about trademark office inconsistency, at least when they get an adverse decision. Because there's no truly objective metric for what's right, or even what's consistent, the well-known biasing effects of having a machine involved could absorb criticism or even refute it. (Accepting blame as a service?) Another possibility the panelist raised was that AI/machine learning in the USPTO could actually ignore nonprecedential opinions, as humans don't. 

Reading List: Jessica Litman, Casting Aspersions

Read it now. Short, readable, and recommended: "If the politics of reforming copyright law to pay more attention to whether and how much ... money finds its way into authors’ pockets seems too daunting to try, that says a great deal about the health of the current copyright law, and of the copyright bar."

Amicus in 5th Circuit age verification/app store case

 On behalf of the Organization for Transformative Works and the Wikimedia Foundation, Inc. The brief emphasizes the breadth of noncommercial speech affected by Texas's app store rating, age verification, and parental consent requirements. 

"dishwasher safe" wasn't too ambiguous to deceive where cutlery was top-rack only

Simpson v. Walgreen Co., --- F.Supp.3d ----, 2026 WL 413565, No. 23-cv-16465 (N.D. Ill. Feb. 13, 2026)

Simpson bought Walgreens’ Complete Home Heavy Duty (Complete Home) plastic cutlery. The front and back of the product were labeled “DISHWASHER SAFE” and “HEAVY DUTY” in all caps. The sides of the product were also labeled “HEAVY DUTY.” Simpson allegedly bought the product in part because she believed it was dishwasher safe, which means something different than “top-rack-only” dishwasher safe. “As it turns out, the bottom of the Complete Home box cautions: ‘DISHWASHER SAFE IF CLEANED ON THE TOP RACK.’” She didn’t turn the box over (a move likely to dump all the utensils out if the box has been opened already) and suffered the consequences. Simpson also alleged that “it is common practice in the plastic dish industry to clearly indicate when a product can only be washed safely on the top rack” and that the commonly used “dishwasher safe” symbols are distinct from the “top rack only” symbols. These labels are allegedly “particularly important for cutlery, because a dishwasher’s cutlery basket is ordinarily located on the bottom rack.”

front and bottom of box

She brought the usual California claims on behalf of a California subclass, as well as state law claims of common law fraud, unjust enrichment, intentional misrepresentation, and negligent misrepresentation.

The court refused to dismiss the claims because deception was plausible.

Walgreens argued that, under McGinity v. Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023), when a label is merely ambiguous, it is not misleading, and a reasonable consumer would check the bottom of the box for more details. The packaging for the plastic cutlery, it argued, clarifies any potential ambiguity with term “dishwasher safe” by adding in all caps the statement “dishwasher safe if cleaned on the top rack.” Simpson responded that “disclosures that are not on the consumer-facing front label do not cure misleading front-label representation because a reasonable consumer is ‘not expected to look beyond misleading representations on the front of the box to discover the truth in fine print on the back label.’ ”

I’ve been thinking about the consumer protection concept of ambiguity that courts seem to be leaning into, and how it differs from Lanham Act ambiguity, and I think that the consumer protection concept is distinct (and probably wrongheaded) in folding materiality into the ambiguity inquiry. Here’s my current thesis, subject to revision:

In consumer protection cases, courts seem to be asking whether a substantial number of reasonable consumers could think that their questions were answered by the front matter, and thus not look further. By contrast, in Lanham Act cases courts find ambiguity when at least one reasonable interpretation is true, or nonactionable puffery. So, if courts frame the consumer protection concept as “if one reasonable interpretation of the front matter is that the consumer’s questions were answered but that answer would be false, then deception is plausible,” there may not be much, if any, daylight between the two standards, and I think that’s the right treatment.

The difficulty is that the facts of Trader Joe’s, which the Ninth Circuit used to announce its consumer protection ambiguity standard, are so extreme about what “reasonable” consumers are supposed to know. It seemed that, in Trader Joe’s, the materiality of manuka honey’s supposed qualities was used to heighten the degree of care exercised by reasonable consumers. That is, if you care about it, you’re supposed to read more about it. But that move conflates epistemology (how do you learn what features a product promises?) with value. Thus, the reason the consumer protection version of ambiguity seems more stringent than the Lanham Act version is stealth importation of a heightened consumer care standard. One way for plaintiffs’ lawyers to proceed, it seems to me, is to specifically allege that, regardless of what we think a careful consumer should do, consumers who do care about product features often make judgments about those features based on the front label, because reasonable consumers don’t think about the details of everything they care about. That would be an exhausting and impossible way to move through the world! Alleging facts about standard practices, as the plaintiff did here, is one way to do make that conclusion more plausible.

The court agreed that McGinty didn’t apply because there, it was clear that the phrase “Nature Fusion” was ambiguous. But “dishwasher safe” was not ambiguous in the same way. Since McGinty, other 9^th Circuit cases have come closer to my proposed  “if one reasonable interpretation of the front matter is that the consumer’s questions were answered but that answer would be false, then deception is plausible” standard. E.g., Whiteside v. Kimberly Clark Corp., 108 F.4th 771 (9th Cir. 2024), found that “ ‘Plant-based” on the front of a package was plausibly misleading even though the back of their packaging disclosed the presence of synthetic ingredients.

“Plaintiff plausibly alleges that the front label of the Complete Home plastic cutlery is unambiguously deceptive to a reasonable consumer.” I wish the court hadn’t used the word “unambiguously” here, because that risks conflating “no reasonable consumer would think otherwise” with “a substantial number of reasonable consumers would receive this message,” and it’s the latter that sets the standard. Reasonable consumers can vary in the amount of thought they give to a given purchase, and that’s why we use the “substantial number” standard: so that we’re not only protecting the most careful subset of consumers.

Anyway, it was plausible that a reasonable consumer “would look at a box of ‘heavy duty’ plastic cutlery labeled as ‘dishwasher safe’ on the front and take it at its word.” Whether there was actual ambiguity was for later (again, worrisome language—the court cites the correct standard, which is whether there was deceptiveness).

[Other issues omitted, including the dismissal of claims for injunctive relief on standing grounds.]

We need federal anti-SLAPP law: Scientist wins summary judgment on Splenda's defamation & related claims

TC Heartland LLC v. Schiffman, 2026 WL 1785093, No. 1:23-CV-665 (M.D.N.C. Jun. 22, 2026)

In a time of rising authoritarianism, it’s not that surprising seeing companies following the lead of Trump, Musk, and the like in suing their critics whose research implicates them in harm. Here, in the absence of a strong anti-SLAPP regime that could have shifted the costs onto the plaintiff, the defendant counterclaimed for defamation, but both sides lose because the proper realm for resolving scientific disputes is the audience of scientists.

Heartland sells Splenda, an artificial sweetener made with sucralose. Dr. Susan Schiffman said things about her research about sucralose, which was published in a peer-reviewed scientific journal, so it sued her for defamation/trade libel (the differences don't matter here). Dr. Schiffman challenged Heartland’s online assertions impugning her scholarship and integrity, so she asserted defamation claims and an abuse of process claim. Bottom line:

Both Dr. Schiffman and Heartland have a First Amendment right to express their views on the safety and health effects of Splenda and sucralose and on the meaning and validity of research investigating those health and safety issues. Neither party has produced sufficient evidence to overcome the other’s First Amendment right to talk about the research and the conclusions to draw from the scientific research, and neither has shown a disputed question of material fact.

A bit more background: “In 2023, Dr. Schiffman, a professor at North Carolina State University, and coauthors published an article about the effects of sucralose and sucralose-6-acetate (“S6A”) in a peer-reviewed journal.” A hired lab did the experiments, not Dr. Schiffman herself. After the article was published, Dr. Schiffman worked with N.C. State to issue a press release about her research, which did mention Splenda; local news stations interviewed her about the article, and she discussed Splenda in those interviews, and a few other news sources reported on the article and published stories with her statements about her research. “In summary, she said that her research showed that sucralose carries multiple potential health risks, and she identified sucralose with Splenda.”

In response, “Heartland created a webpage disputing her article’s findings, her statements about the article, and the article’s implications. It impugned the quality of her research and essentially accused her of being a publicity hound.”

To prevail on a defamation claim under North Carolina law, the plaintiff must establish: (1) the defendant made a false, defamatory statement; (2) the statement was “of or concerning” the plaintiff; (3) the statement was published to a third party; and (4) the statement caused injury to the plaintiff’s reputation. For public figures, actual malice is required.

“Scientific conclusions based on research and speech about that research do not fit easily into the fact-opinion paradigm.” Scientific speech “receives First Amendment protection under certain conditions to encourage legitimate debate about scientific issues and to encourage discussion and research into matters of public and scientific interest.” [The Supreme Court has been extremely uninterested in identifying a category of “professional speech” that can be more heavily regulated. It’s hard to say whether the Court would be more amenable to “scientific speech” as a category that can be less regulated.] Although most conclusions in a scientific journal article are, in principle, “capable of verification or refutation by means of objective proof,” the court quoted ONY at length:

it is the essence of the scientific method that the conclusions of empirical research are tentative and subject to revision, because they represent inferences about the nature of reality based on the results of experimentation and observation. Importantly, those conclusions are presented in publications directed to the relevant scientific community, ideally in peer-reviewed academic journals that warrant that research approved for publication demonstrates at least some degree of basic scientific competence. These conclusions are then available to other scientists who may respond by attempting to replicate the described experiments, conducting their own experiments, or analyzing or refuting the soundness of the experimental design or the validity of the inferences drawn from the results.... Needless to say, courts are ill-equipped to undertake to referee such controversies. Instead, the trial of ideas plays out in the pages of peer-reviewed journals, and the scientific public sits as the jury.

Here, both parties were public figures, at least limited-purpose ones; indeed, “[t]he argument that Heartland is not a limited-purpose public figure borders on the ridiculous.”

Heartland purportedly only challenged the post-study comments, e.g., “A new study finds a chemical formed when we digest a widely used sweetener is ‘genotoxic,’ meaning it breaks up DNA. The chemical is also found in trace amounts in the sweetener itself, and the finding raises questions about how the sweetener may contribute to health problems....”; “Our work suggests that the trace amounts of sucralose-6-acetate in a single, daily sucralose-sweetened drink exceed that threshold [of toxicological concern]”; “When we exposed sucralose and sucralose-6-acetate to gut epithelial tissues – the tissue that lines your gut wall – we found that both chemicals cause ‘leaky gut.’ … A leaky gut is problematic, because it means that things that would normally be flushed out of the body in feces are instead leaking out of the gut and being absorbed into the bloodstream”; “We found that gut cells exposed to sucralose-6-acetate had increased activity in genes related to oxidative stress, inflammation and carcinogenicity”; “[a single packet of Splenda or in one drink exceeds] the level used in the food industry and in Europe, at the European food agencies, to say that this is too much genotoxic compound in the food supply. And so a single packet is too much”; “Risk wise, sucralose is worse [compared to other artificial sweeteners]”; and “basically, the data shows it’s not a good idea to consume sucralose.”

It was undisputed “that she made those statements following the publication of a scientific article she coauthored and that her remarks were directed to summarizing and explaining her research results to a lay audience.” Given that courts are “careful when applying defamation and related causes of action to academic works, because academic freedom is a ‘special concern of the First Amendment,’ ” “scientific conclusions are protected speech to the extent they are ‘draw[n] ... from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement.’ ” [The court explicitly noted that its conclusion would not necessarily apply to a consumer-facing ad.] Accurate “secondary statements,” whether in a journal article, podcast, or other media, “do not form the basis for a libel claim.” This could be resolved as a matter of law.

The secondary statements would only be actionable if they were inaccurate descriptions of the article or the article was based on fraudulent data. Heartland did not show that either limit applied.

The challenged statements were accurate summaries of the article, which said things like “Overall, the . . . findings for sucralose-6-acetate raise significant health concerns regarding the safety and regulatory status of sucralose itself”; “Data indicate the sucralose-6-acetate is genotoxic,” and “sucralose-6-acetate significantly increased expression of genes associated with inflammation, oxidative stress, and cancer.”

Heartland argued that “Dr. Schiffman did not sufficiently qualify her conclusions as preliminary or note the lack of definitive assessment as to toxicity in humans.” But Dr. Schiffman used qualifying language in the N.C. State press release such as “the finding raises questions about how the sweetener may contribute to health problems,” “our work suggests that,” and “raises a host of concerns.” The university press release said that the article relied on “in vitro” experiments and tests. “Even in the three-minute news interview, Dr. Schiffman was not definitive; she said that S6A ‘can’ have negative health effects”; the interview specifically referenced the article.  “Thus, in a shorter fashion and directed to a lay audience, her secondary statements repeat the conclusions that she made in the article based on the studies detailed in the article.”

What about nuance? “To the extent Heartland is saying that the secondary statements are not nuanced enough, that argument if adopted would essentially prohibit scientists from commenting on sophisticated research to a lay audience beyond reading their study results in full. And Dr. Schiffman’s secondary statements were not so over-simplified as to be inaccurate.”

Heartland pointed to Dr. Schiffman’s answer to the question “How much Splenda or sucralose needs to be consumed in order for this to be harmful?”: “a single packet ... is too much.” In context, this was opinion, and consistent with statements in the article discussing “significant health concerns regarding the safety ... of sucralose itself,” discussing the potential genotoxicity of “a single daily sucralose-sweetened drink” and “single servings of sucralose,” and the like. It was irrelevant that she didn’t test Splenda; Splenda is made of sucralose.

Nor was there sufficient evidence of fraudulent data or inaccurate descriptions of data. The purported inaccuracy came from Heartland’s “disagreements with her results, methodology, and decisions about what to include in and omit from her published research.” “But omitting data does not necessarily make research fraudulent.” There was no evidence that the numbers in the studies were made up or that the tests were not conducted. “Heartland and others can run their own tests following the same methodology or using methodology they say is better or more complete, and they are free to use their results to publicly rebut Dr. Schiffman’s results if that is what such research shows.”

Heartland also pointed to an investigation by N.C. State, Dr. Schiffman’s employer, into Dr. Schiffman’s research, which seems to have been prompted by Heartland’s threats. “According to the investigation report, a vice chancellor convened a panel of professors to investigate whether Dr. Schiffman committed research misconduct based on Heartland’s allegations in this case that she (1) omitted contradictory data and (2) did not disclose conflicting repeat tests.” The committee concluded that Dr. Schiffman did not follow “best practices” because she “should have reported the negative Multiflow data from Litron Laboratories in the article” and that a discussion of the reason behind the differing results “would have been appropriate and ... followed best practices.” The committee stated that the exclusion of some data “should have been discussed with all coauthors of the article.” But all of that tended to put the article in the firmly protected category, since these were scientific differences and not fraud: the report unanimously concluded that Dr. Schiffman did not commit “research misconduct” because she provided a reason for the omission. “Failing to use best practices does not equate to fraud, and nothing in this report supports Heartland’s assertion that Dr. Schiffman used fraudulent data or did not accurately describe the data and methodology underlying those conclusions.”

In the alternative, Heartland failed to show actual malice. Its evidence of malice was: the omissions; a third-party scientist’s opinion that Dr. Schiffman had bias towards the research outcome because she omitted test results; funding she received from the Sugar Association over 15 years ago; and an email about seeking funding broadly from different entities for her research. None of this evidence was sufficient to convince a finder of fact that Dr. Schiffman “in fact entertained serious doubts as to the truth of [her] publication.”  Specifically, the evidence about funding was “too remote and speculative to permit an inference that she acted with malice in making the secondary statements.” In this context, “[m]ore papers, more discussion, better data, and more satisfactory models—not larger awards of damages—mark the path toward superior understanding of the world around us.”

The counterclaims failed for similar reasons. Some of Heartland’s criticisms were protected opinion, including that the article was “not sound science,” which is vague and encompasses many meanings. Others were scientific conclusions on a “subject about which there is legitimate ongoing scientific disagreement.”

The court also rejected an abuse of process counterclaim, even though “[a]nyone who delves into the record and procedural history of this case would easily have suspicions about Heartland’s motives.” Which is why we need a federal anti-SLAPP law.

Indeed, the court says that “[t]he First Amendment does not require a scientist to defend research studies in court merely because a company whose sales of a product might be affected by publicity about that research disagrees with the research or dislikes the publicity.” But … she did have to defend her research studies in court, in part because Heartland faced no real threat that it would have to pay for her defense—imposing costs on her was a rational business decision. An anti-SLAPP law might have given Heartland pause, and would definitely have made it easier for her to find good counsel.

PediaSure "growth" claims might communicate height gain, but price premium theory fails

Noriega v. Abbott Labs., 2026 WL 1601501, No. 23 Civ. 4014 (PAE) (S.D.N.Y. Jun. 4, 2026)

Conventional wisdom is that certification is the ballgame for consumer class actions, but it might be empirically mistaken. This case is an example where there’s plenty more litigation ahead. Noriega alleged that the packaging and marketing of PediaSure Grow & Gain misled consumers when it claimed to be “Clinically Proven to Help Kids Grow” in violation of New York General Business Law (“GBL”) §§ 349 and 350.

The court denied summary judgment to Abbott and resolved a bunch of evidentiary objections.

There’s a disclaimer on the label: an asterisk, dagger, or other note of the form: “Clinically Proven† to Help Kids Grow.” The disclaimer has at various times read: “Studied in children at risk for malnutrition”; “Studied in children at risk for malnutrition, 2 servings per day,” or “Studied in children with and/or at risk for undernutrition, 2 servings per day.” It appeared in different colors, sometimes set against a background of the same color, and other times against a contrasting background.

The label also shows a cartoon giraffe wearing sunglasses, next to tick marks that resemble a ruler. Under the PediaSure name, the label states, “Grow & Gain,” and below that, “With Immune Support.” he label contains circles touting a product attribute, such as “27 Vitamins & Minerals,” “7g Protein,” and “#1 Pediatrician Recommended Brand.”

Earlier versions displayed an image of a lion. And instead of the challenged statement, the label read, “Helps Kids Grow.” At least 2 TV ads also used the challenged statement, including a “worried mom commercial” depicting a child who is shorter than the children next to him, and who stands on his tiptoes to appear taller. The voice of a mother states: “Before PediaSure, I was concerned that he was behind in growth.” She states that her child’s pediatrician told her to try PediaSure, and that “it’s clinically proven to help kids grow.” The commercial displays the word, “GROWTH,” above an image of a child standing next to tick marks. A second ad depicts a child standing between two taller children, who states that his mother was “concerned about my growth,” as the commercial depicts a mother measuring the child’s height against a doorframe. The child states that his mother tried PediaSure because it is “clinically proven to help kids grow.”

The PediaSure product page of Abbott’s website lists six published studies, and Abbott completed data collection in another study in late 2024, after the filing of this lawsuit. Whereas Abbott’s earlier studies had largely been conducted on children outside of the United States (e.g., the Philippines, Taiwan, Pakistan and Peru), the new study, AL-48, studied the effects of PediaSure in children in the United States.

Plaintiff’s experts: First there was marketing expert Dr. Gita Johar, whose report assessed how consumers would understand the challenged statement. Her methodology: review academic literature related to consumer marketing claims, and whether and when consumers can understand disclosures that purport to modify or limit such claims; review the Complaint and PediaSure labels and television commercials; then assess, in light of the academic literature, how target consumers would process the text and imagery on the PediaSure bottle, whether consumers would notice and understand the footnote disclaimer, and what reasonable consumers are likely to believe about PediaSure.

She opined that the PediaSure label would lead consumers to believe that the product is clinically proven to help kids grow tall and that the footnote disclaimer is “unlikely to be noticed, read, [or] understood.” She also opined that this was materially misleading, as clinical proof was a “key benefit” of the marketing.

This opinion was admissible even though Johar didn’t conduct empirical research or rely on case-specific data collection. Although a specific survey would have helped, Dr. Johar’s sources and methodology were reliable for these “uncomplicated” conclusions. Likewise, considering Abbott’s internal marketing materials might have helped, but only to fortify “her most central, and unsurprising, conclusion: that PediaSure’s packaging leads consumers to believe the product is clinically proven to help kids grow in height.” With extensive experience in consumer product marketing, a lack of specific expertise in children’s nutrition drinks didn’t matter.

Her testimony would help the jury because she wasn’t setting out her personal beliefs, as a consumer, about the meaning of the challenged statement on the label but rather her opinion, “as a marketing professor, based on her experience and research, about how a reasonable consumer would view and process the challenged statement in the context of PediaSure’s packaging.”

The court also denied the motion to preclude Dr. Daniel Hoffman’s expert report on whether Abbott’s studies supply clinical proof that PediaSure promotes height growth. He’s a professor in the Department of Nutritional Sciences at Rutgers University whose expertise includes “[s]tunting and growth retardation,” and “[e]nergy metabolism and body composition.” Id. He has published journal articles and presented on topics related to children’s nutrition and growth. He opined that Abbott ignored its internal claims substantiation guidance manual that addresses health benefit claims, the evidence necessary to substantiate such claims, and the claims development process. He further opined that Abbott improperly applied “inapposite studies from homogenous populations in developing countries” to children in the United States, failing to conduct “bridging studies” that enable results from one population to be translated to another.

He also reviewed FTC communications admonishing Abbott about its practice of using studies from developing countries to support marketing claims directed to U.S. consumers and internal Abbott communications that criticized Abbott’s studies, and depositions in which Abbott employees echoed those concerns.

The heart of his report analyzed the quality of Abbott’s studies, concluding that they “do not clinically prove or show that PediaSure helps children grow.” This heart was admissible, though other aspects of his testimony were inadmissible, including testimony about Abbott’s internal manual and whether Abbott complied with its own rules; about Abbott’s compliance with FTC health claims guidance; and how a reasonable consumer would interpret the challenged statement.

Finally, Dr. Ingersoll’s expert report claimed that the challenged statement had a price premium. The court excluded the testimony because he didn’t specifically test Noriega’s theory of liability: the claim that PediaSure helps kids grow in height. He also did not test the disclaimer or imagery on the PediaSure label.

The label’s references to growth “can also—or alternatively—be read to encompass other forms of growth (e.g., weight, body composition, and/or muscular development),” and he didn’t test height specifically. “Nor did it test the features which Noriega claims would make a consumer more likely to understand the challenged statement as referring to height growth (the giraffe, tick marks, and ‘Grow & Gain’ label). And it did not test the disclaimer that Abbott claims contextualized the challenged statement.”

The court commented that “[i]t would not have been difficult to design a conjoint survey to test this representation. In cases in which a label was susceptible of multiple meanings, surveys have tested the premium traceable to the meaning the plaintiff claimed was false or misleading.”

In addition, the disclaimer should have been included, as proven by Noriega’s own testimony that she construed the challenged statement to mean there was “scientific proof that this product can actually make a child grow in height,” and that such proof entailed examining thousands of children in the United States who had consumed the supplement for “a year or two” and “grew more than what they should have.” If she’d read the disclaimer, it might have changed her assumptions and her willingness to pay. “The challenged statement unavoidably includes a footnote (indicated by a dagger, asterisk, paragraph symbol, or section symbol, depending on the packaging) that contains the disclaimer. To be sure, there is no assurance that any particular purchaser read the footnote—and conceivably a study could have taken into account the incidence of purchasers who reviewed the footnote relative to those who overlooked or disregarded it.” But there was no explanation for its omission from the survey, suggesting “an impermissibly result-driven methodology.” Noriega could argue at trial that the disclaimer was too small to read and too confusingly worded. “But that justification, which is absent from Dr. Ingersoll’s report, does not support Dr. Ingersoll’s excluding the disclaimer from the survey and failing to engage with it at all in his report…. By omitting the disclaimer based on its purported ‘inadequacy,’ Dr. Ingersoll assumed the conclusion that a conjoint survey is meant to prove.”

Noriega argued that including the disclaimer in a conjoint survey would have improperly elevated it in importance, causing “focalism bias.” But conjoint surveys can address that, for example by showing one half of respondents the disclaimer, and the other half the statement without it. “Beyond that, there presumably were ways—independent of a conjoint survey—to test Dr. Ingersoll’s premise that consumers would have overlooked or not understood the footnote disclaimer. Dr. Ingersoll’s untested assertion to this effect does not bespeak rigorous methodology.”

Abbott’s materiality witness Dr. Kivetz is a marketing professor at Columbia Business School. In his survey, the test group was shown a 360-degree interactive image of PediaSure with the challenged statement and the cartoon giraffe with tick marks (the product as it appeared in stores). The control group was also shown an image of PediaSure, but without the challenged statement and the tick marks on the giraffe. Respondents were then asked how likely they would be to buy the product; if they didn’t say “don’t know,” they were asked what made them answer the first question as they did; and asked about “[a]ny other reason or reasons.” Then all respondents were informed about the typical price range for a package of six bottles of a pediatric nutrition drink ($7 to $17), and asked to indicate the highest price they would be willing to pay for the product that they had been shown.

Kivetz concluded that consumers’ purchase intentions were similar across the test and control groups, in that 88.7% of test group participants and 90.4% of control group participants answered that they definitely or probably would buy the PediaSure product that they were shown. He also found that “the vast majority” of the reasons respondents in the test group provided for purchasing PediaSure did not relate to the challenged statement or height growth. He reported that “only 1.9% of participants” in the test group gave a purchase explanation that could refer to the challenged statement, and “[n]ot a single test group participant” mentioned height. In the control group, no respondents provided, as a reason against purchasing PediaSure, that the product is not clinically proven or does not help with height growth. Likewise, the average willingness to pay for test group respondents was $12.94, compared to $12.49 for control group respondents.

Noriega’s criticisms were not so strong as to render this testimony inadmissible. This study was a between-group study; in a within-group study, respondents are shown multiple products and asked which they prefer. Noriega argued that within-group studies “should almost always” be used to assess materiality, but between-group studies have been used before in the false advertising context. And speaking of focalism bias, within-group studies would have it.  

Although more questions could have been asked, it did more than ask for a top-of-mind response: it asked consumers why they were definitely/probably likely or unlikely to buy the product, and instructed respondents to “be specific and include details.” One part of his opinion, saying that the survey he conducted is “routinely used in academic, industry, and litigation settings,” and also citing cases that accepted his consumer surveys and found that they “conclusively showed that the challenged claims were not material,” was inadmissible.

Abbott’s “clinically proven” expert Dr. Heyman, a professor in the Department of Pediatrics at UCSF, also offered admissible testimony that there was “ample clinical support for a claim that PediaSure helps kids grow, including in both height and weight” based on an in-depth review of Abbott’s studies. He also admissibly opined that two studies, which Noriega contended disproved that PediaSure has height growth benefits, “do not undermine or contradict” clinical support for the challenged statement. The court excluded his opinion that Noriega’s grandson grew in height and weight while consuming PediaSure, and that the grandson was not harmed by his consumption of it. The court also part of his testimony that depended on a study that was not relevant because it was completed after the time period on which Noriega’s claims are based (and after the proposed class period).

Once that was done, Noriega survived Abbott’s motion for summary judgment. Along with the expert testimony, there was other relevant evidence that the height message was communicated. A rational juror “could find that PediaSure’s packaging, viewed as a whole, communicates that the product helps children grow taller.” Though the wording was unspecific as to the type of growth,

the imagery alongside it supplies a strong basis, to say the least, on which a reasonable consumer could read Abbott to make a representation about height growth. The central image on the bottle is of a cartoon giraffe—the animal well-known as the tallest of all mammals. The giraffe appears next to vertical tick marks resembling a ruler that climb to the level of the giraffe’s head. There is no comparable horizontal imagery. And the words “Grow & Gain” appear in large font below the brand name. These features could readily support a consumer’s conclusion that the word “grow” in the challenged statement refers to height growth, with the word “gain” referring to weight gain.

The same was true of the commercials, which focused on children shorter than the children around them. The “worried mom” ad displayed the word “growth” above an image of a child standing alongside vertical tick marks; and, in the final scene, shows the child (who has begun drinking PediaSure) reaching up to erase a classroom white board. The “basketball commercial” ad showed a child standing between two taller children. The child states that he has “got a lot to look up to” and the commercial depicts the mother measuring the child’s height against a doorframe.

A jury could also find that Abbott records and employee deposition testimony support the conclusion that a reasonable consumer would take away from PediaSure’s packaging and marketing that it promotes height growth. A 2015 slide deck, which discusses how the giraffe concept performed in a packaging study, includes these quotes from respondents: “Measuring tape image makes it clear this product helps with growth,” and “The giraffe is cool and he’s an example of what the product does for growing.” Abbott’s brand director of PediaSure also testified that Abbott’s marketing team sought to “include height within the definition [of growth] to better define the segments of growth.”

Likewise, there were genuine issues of fact on the truth of the height claims. A “rational juror here could find that the deficiencies identified by Dr. Hoffman are so basic and devastating that Abbott’s studies cannot credibly be claimed to constitute clinical proof of the challenged statement.” That juror could agree that establishing that PediaSure promotes height growth in a malnourished child in a developing country “says absolutely nothing about whether it does the same for a healthy New York City child with a sound diet.” “The Court is unpersuaded by Abbott’s suggestion that the nominal existence of a study, even one that could be found wholly inapposite to the proposition at hand, inherently defeats a challenge to a claim of clinical proof.”

A rational jury could also find that the footnote disclaimer here was ineffective, relying either on Dr. Johar’s testimony or by “examining the packaging for him or herself,” noting that “the challenged statement and disclaimer are on opposite sides of the giraffe and that the challenged statement is larger and more prominent than the disclaimer,” and/or finding that the disclaimer didn’t address height specifically or explain the implications of the study feature (“studied in children at risk of malnutrition”) that it briefly discloses.

Invoking the Lanham Act standard, “Abbott suggests that, because the challenged statement is impliedly (rather than literally) false, Noriega is required to come forward with extrinsic evidence that the challenged statement would mislead consumers.” This isn’t a Lanham Act case, and “GBL §§ 349 and 350 do not have an extrinsic evidence requirement.” [Conceptually, this difference is hard to defend since the core concept, deceptiveness, is the same for consumers and competitors, both of whom are only harmed when consumers are deceived, but the real problem is the Lanham Act survey requirement so I’m certainly not saddened by the court refusing to port it over.] Given the giraffe and the ruler, this wasn’t a case where a jury would need extrinsic evidence to determine what message was received.

And there was a material disputed issue on materiality, including Dr. Johar’s report. Abbott’s internal documents also included an online survey of more than 500 mothers, which tested the statements that made respondents most likely to purchase PediaSure; the challenged statement ranked third out of 13 options. A 2024 marketing presentation stated that, in 2019, “height households had significant buy rate growth,” and that the fourth most popular reason consumers purchased PediaSure was that to “help child grow.”  Abbott’s documents also included statements that 51% of respondents want to buy products that “help my child grow in height” and that 20% of respondents give children PediaSure to help “grow in height.” [This may well be why we shouldn’t give much weight to anybody’s surveys on materiality or what message was communicated—the fact that Abbott was easily able to figure out a methodology that would give it the opposite result when it had a very strong interest in so “showing” suggests either that Abbott’s marketing department is very bad at its one job or that, for business decision-making purposes, the claim is material.] Abbott weakly argued that its internal records didn’t “literally” show that height was a reason for purchase, but they certainly tended to make that conclusion more likely.

Kivetz’s immateriality study, while admissible, was not dispositive given the other admissible evidence.

What about injury? There was sufficient evidence to survive summary judgment on one theory of injury: a benefit-of-the-bargain theory. Noriega testified that $3.25—the cost she claims to have paid per bottle—is “a lot to pay for something,” and that she understood PediaSure to cost more money on account of its capacity to improve height. She testified that she believed that she was “paying more” for the prospect of height benefits and that she would not have bought PediaSure had the challenged statement not been on the label. This could show detrimental reliance, but not on a price premium theory.

Good thing statutory damages are available!

6th Circuit approves of using (at least) same similarity standard for dilution as for confusion

Scotts Co. v. Procter & Gamble Co., 2026 WL 1601797, No. 25-3555 (6^th Cir. Jun. 4, 2026)

Discussion of trade dress opinion here. False advertising claim here. The district court didn’t abuse its discretion in denying a preliminary injunction against P&G on the claims that P&G’s weed-killer product Spruce infringes on and dilutes Scotts’s Miracle-Gro trade dress.

Spruce

Scotts defined its claimed common-law trade dress as (1) A green and yellow color combination; (2) With each color presented as a separate horizontal band and the top color taking up a smaller ratio than the bottom color; (3) With the two bands sharing a common border that runs horizontally along the package; (4) With a straight line dividing the two colored bands; and (5) A circular horizontally centered graphic element.

Miracle Gro examples

Approximately one-third of Scotts’s Miracle-Gro products, by revenue, are “specialty products” that come in different packaging. And a number of third-party products in the lawncare space, some of which are “widely sold in the lawn-and-garden marketplace,” and at times “shelved right next to” Miracle-Gro product, have some overlaps.

third parties

On appeal, Scotts objected to three of the district court’s factor analyses: (1) mark strength, (2) mark similarity, and (3) relatedness of goods. The big three!

Strength: the district court weighed this “at least somewhat in Scotts’ favor” because it found that the trade dress had substantial commercial strength but less conceptual strength. Scotts argued that substantial commercial strength should be sufficient to make the factor weigh entirely in Scotts’s favor. No! Strength depends on the interplay of conceptual and commercial strength. Even though Scotts has invested “substantial effort and large sums of money over an extended period of time” in promoting the trade dress, “there’s nothing particularly distinct about using green and yellow for packaging in the lawn care industry.” Extensive third party use of similar marks limited the conceptual strength of the mark, reducing its strength for purposes of this factor. [We can say—but I’m not sure any court has outright—that a mark can be both very strong and very narrow. American Airlines is highly recognizable, but it’s pretty easy to use a mark that is both heavily overlapping (using “American” or “Airlines” or even both plus a geographic modifier) and not confusing.]

Similarity of marks: Scotts that the district court erred as a matter of law by “rel[ying] on a legally improper side-by-side comparison of the packages in the courtroom,” and that it made a “clearly erroneous” factual finding that the Miracle-Gro trade dress always uses the same ratio of green and yellow.

While the Sixth Circuit “do[es] not approach trade dress claims by parsing minute differences between products,” “that does not mean that actually comparing the packaging is inappropriate.” Indeed, that’s the best practice. The district court identified the appropriate legal standard: “[W]hether a given mark would confuse the public when viewed alone, in order to account for the possibility that sufficiently similar marks may confuse consumers who do not have both marks before them but who may have a general, vague, or even hazy impression or recollection of the other party’s mark.” The district court “appropriately” cited a variety of individual visual differences to show that the “visual differences add up to a highly dissimilar overall visual impression between the Miracle-Gro Trade Dress and the Spruce packaging,” and correctly identified that the products were typically not shown side by side in retail stores.

The ratio finding was also not clearly erroneous. Scotts’s registration defines a specific one-third green to two-thirds yellow color combination. And while Scotts claimed a broader common-law trade dress, its expert testified that “our Miracle-Gro trade dress says typically one-third green on top, two-thirds yellow on the bottom,” mentioning  the “one-third/two-third” ratio repeatedly as, in the court’s words, “a key factor that distinguishes Miracle-Gro from a multitude of other green and yellow products.”

The court also noted Scotts’ attempt to make its trade dress a nose of wax. “[S]ome of the products that Scotts cites as using other ratios also completely lack other elements that Scotts identified as part of its broader common-law trade dress …. Scotts can’t have its cake and eat it too; either the yellow-and-green combination is distinct from the many other green and yellow products on the market because of its specific ratio, or it isn’t nearly as distinct as Scotts claims.”

Relatedness of the goods: Because Spruce is a weed killer and there is no equivalent product in the Miracle-Gro product line, the district court reasoned that the products are “only somewhat related” because the products are not “directly competitive.” This too was not an abuse of discretion. The Sixth Circuit sorts this factor into three categories: “(1) direct competition of services, in which case confusion is likely if the marks are sufficiently similar; (2) services are somewhat related but not competitive, so that likelihood of confusion may or may not result depending on other factors; and (3) services are totally unrelated, in which case confusion is unlikely.” This was category (2) because both were lawn and garden products, but did not directly compete.

Dilution: Scotts argued that the district court erred in holding that its finding that the Miracle-Gro trade dress and Spruce’s packaging are “highly dissimilar” also meant that Scotts wasn’t likely to succeed on its dilution claim. The Sixth Circuit has held that “[t]he degree of similarity required for a dilution claim must be greater than that which is required to show likelihood of confusion” because “[t]he purpose of anti-dilution laws is to provide a narrow remedy when the similarity between two marks is great enough that even a noncompeting, nonconfusing use is harmful to the senior user.”

Scotts argued that this precedent had to be rejected after the TDRA. It noted that both the 9^th and 2^nd Circuits have held that there’s no requirement of substantial similarity for dilution purposes, though I think they’re both wrong. [The underlying logic is that the TDRA gives a multifactor test for blurring referencing the “degree” of similarity as well as the “degree” of other factors, so it must be possible to dilute without a high degree of similarity. I think this is wrong as a matter of grammar—the statute simply doesn’t say where to draw the line. Moreover, the other factors are essentially all about fame (with the arguable partial exceptions of intent/actual association), which by definition will be satisfied if you get to the multi-factor test because you’ve shown ownership of a famous mark. So if we want continuity with the other “degree” factors, “very high” should be required for the factor to favor the plaintiff.]

According to Scotts, the district court should therefore have done more balancing, which would favor it because of its claimed fame. P&G pointed out that the definition of dilution is dependent on some amount of similarity, and that the Ninth Circuit also held that while “a particular degree of similarity is not a threshold, similarity is the necessary predicate for dilution analysis.” “The statutory text itself does not seem to mandate that the district court specifically weigh all six factors; it only states courts ‘may’ consider ‘all relevant factors’ and offers six examples.”

The court of appeals didn’t resolve the issue; even assuming that the similarity requirement is no longer heightened relative to a likelihood-of-confusion analysis, there was no abuse of discretion in finding that the “high level of dissimilarity” found in the infringement analysis also ended the dilution inquiry. [This next quote shows why the 2nd and 9th Circuits are wrong: if it’s not a humorous understatement, it’s a sign that something has gone very wrong.]  “Since dilution definitionally requires similarity and some similarity is ‘the necessary predicate’ for dilution analysis, a finding of a complete lack of similarity should strongly influence the dilution analysis.”

Even if the dilution similarity standard isn’t more rigorous than the infringement similarity standard, it was not error to hold it to the infringement similarity standard—thus, the court of appeals strongly implies, the dilution similarity standard can’t be less rigorous than that for confusion.

Some thoughts: If dilution were a less rigorous standard, how would we calibrate using the other factors of the test (“test”)? Perhaps we could say that no one can get closer than other slightly-similar marks or designs on the market. This would be particularly beneficial to makers of allegedly famous product designs or even packaging, since they’re the ones particularly likely to want to constrain competitors. This seems to me to be unrelated to any evidence we could gather about diminished distinctiveness—because even if we have a theory about preserving conceptual space around a mark, the fact of the matter is that conceptual space will shift based on other features, not just similarity. Dida’s Café would probably not make you think about Adidas, but Dida’s Sneakers could well do so. So identifying the comparators “nearest to” the famous mark that are perceptually somewhat similar and that therefore define the scope of its protection against dilution will be conceptually and practically difficult. Why would we compound our troubles by requiring less than compelling similarity, which offers us a way to define the scope of protection that is at least consistent with the idea of drawing firm boundaries around things that are property?

Promoting Progress part 2 at AU WCL

Framing the Public Interest Agenda - Beyond the Narrative of “Content vs. Tech”

Framing Digital Consumer Rights

US experience is v different from rest of world—want to support the int’l discussion keeping that in mind. US libraries are ubiquitous, 122,000 in US; int’lly, often they’re more gov’t focused. Most tech companies are globally minded—come up with Content ID, etc. to go through all jurisdictions. So int’l issues affect consumers here.

Consumer Bill of Rights was drafted some time ago—Zoe Lofgren & Boucher. Dept of Commerce also has White/Green papers. Places to start?

Dark patterns: example of non-© issue that is about being free from manipulation—consumer bill of rights shouldn’t just focus on ©. A bunch of things can undermine consumers’ digital rights. What is “information justice”? Defensive/we don’t like big tech/mechanisms of resistance like protest v. affirmative visions of social life.

Google is still the only company supporting policy work in © space where Anthropic & OpenAI & everyone else is benefiting from it.

Bill of rights as a foundational concept that could also provide int’l models. Framing human rights. Biden admin’s AI Bill of Rights could also be a source of inspiration. Privacy/consumer rights provisions built into any AI settlement.

Current democratic crisis is so broad that little corners of © are not going to be compelling; the temptation is to think that the public interest is whatever doesn’t serve the interests of big tech.

Participatory democracy as a structuring idea: need agency as citizens—access to info, quality of info ecosystem, ability to communicate w/each other not always mediated by algorithms.

Copyright in a quixotic place: enormous obstacle to many things even as content owners complain that there’s too much competition. The importance of © in this era for creativity is completely different from what it used to be and that gets lost.

There aren’t many functional ways to regulate content online. Copyright is asked to be a jobs program, privacy law, antidefamation law, to carry all kinds of water b/c it’s there and people can see they’re not getting any help to solve digital problems. Congress also realizes this for better or worse. Anticircumvention exceptions are an example of realizing they had to make it someone else’s problem or nothing would happen.

Lots of nonprofit & public benefit & prosocial uses of tech but they tend to be invisible to average person (except Wikipedia). Everyone’s yelling at ChatGPT, but integrating AI into hospitals for info collation/troubleshooting insurance is making huge strides, not for diagnosis but for better management—internal only. Fear of backlash is one reason for silence.

There is a difference b/t consumer advocacy and public interest advocacy—they don’t overlap as much today as they did 10 years ago though there’s still a ton of overlap. Music streaming as an example: consumers benefit from Spotify but the music ecosystem is tanking as a result of it. Tech/public interest coalition broke down, and rhetorically public interest messaging was tied too closely to “you need fair use so you can do this fun thing on the internet.” Internet is surveillance, AI in your job, etc. We need to pivot to address bigger questions and our positions’ importance to them. Antitrust moment: is it the hammer that we need to turn everything into a nail? Room for discussion about antitrust/© interface as policy (not whether having 3 record labels is technically a “monopoly”). RIAA speaks as if for “creators” but they’re representing the intermediaries; musicians are independent contractors who are very hard to organize for a variety of reasons.

The right to share with my friends; the right to tinker; the right to transform; the right to repair. The cost of access/price discrimination is also relevant & the huge wealth transfer from publishers & consumers to intermediaries—terms and nature of access. Consumer as creator also matters. Consumers’ interests in reaching audiences and interacting w/one another. Consider also FTC/deceptive conduct restrictions/state consumer protection for shaping production & consumption of content. Are the terms of the exchange unfair or deceptive? Antitrust has the potential to expand again. But Google search case is depressing in that regard b/c it shows the limits of antitrust remedies.

Product liability/failure to warn/plaintiffs’ bar as potential allies? Some of the tort litigation is brought by copyright ps’ lawyers. Folks in this room use the internet very differently from one another and from the ways that many politically engaged young people do. Tiktok: you can train your algorithm away from not just topics but tones. As a result, when you think about losing your ability to lend a CD to a friend—teenagers don’t think about that any more; they just tell you to go to YT or Spotify. So picking that as a battleground won’t resonate w/a lot of younger people.

© misuse: more flexible than antitrust? Not as constrained as patent law misuse.

We’re better at ID’ing copyright problems or how problems are being caused behind the scenes even as we argue that © isn’t the solution to all your problems.

If we can’t figure out how to understand or mobilize people b/c we don’t know what they’re doing, that feels like the authoritarians have one—at some level, we need a common culture. That’s about journalism, ©, and many other things—seems like an order of operations problem.

Control of Information and Knowledge - Responding to Technical,  Business Structure, Regulation, Lawfare, Contractual and Other Means Beyond Copyright

Style claims: people think they’re supporting individual artists but style protection would let Disney claim to control modern Polynesian art (Moana). How do we talk about why and how it’s really important to not expand ownership of ideas & info even if it feels pleasant to think of it as a weapon against big tech.

1202 claims: huge statutory damage assertions, even if people aren’t © owners. The play is extortion, not stopping AI. 1201 cases are challenging web scraping as violation of 1201. Big threat to viability of open internet.

Music: Controlled private domain—public domain music that is still hard to access through score controls. Draws attention to market power. Publishers will only rent scores. Similarly warps selection of scores by operas, ballets, etc.

Protecting the Roles of Public Institutions - Libraries, Archives, Museums

Provocation: consumer interests are losers in this policy space. Access to information is practically more broad, often freely or for relatively low costs. Outside of right to repair, where there is more appeal, it’s pointless to talk about consumer interests bc it’s so much better now than it used to be. Disappearance of 1984 from Kindle is an exception that proves the rule.

Preservation: physical items are easier legally speaking; licensed access means someone else’s server is in charge. But maybe the solution is ultimately not © or exceptions but instead money: finding mechanisms to work with industries. Films—would like to believe the industry wants preservation and could accept preservation on a voluntary basis. It would take a boatload of money though. Let the Academy run the archive to reassure industry that it’s an archive not to be used for piracy. We want our analog facility, but digital levels of access; we may have to accept tradeoffs. What if we can’t save everything? Not everything can/should be digitized, and even if it is, preservation institutions are brittle. The copy is the point: do we need shadow libraries? Something else? Technical solution to allow controls for reassurance? [Have big content owners ever been reassured enough to allow permanent copies? Maybe w/ music downloads b/c that’s no longer a big consumption vector.]

Telecom conceives of libraries as fundamental to broadband access; should also frame them in © as fundamental to access to culture.

Monopsony problem w/Overdrive means that more money can’t solve the problem—they’ll just soak up as much money as is available.

What is the Public Interest in Copyright Law in Relation to Other Consumer Interests - Recognizing Accretive Surveillance Harms

[personal matters took me out of the room] Anonymity/ability to be pseudonymous online. Europe has more experience balancing incommensurable human rights. Publishers would love to have all the data in the hopes of being able to monetize it somehow, but it seems to be turning into a panopticon w/o even that. Amazon doesn’t give publishers their data. Data collection is a reflex but may not have as much economic value as hoped—that might be a point where we could find common cause. Publishers often still operate like 19^th century businesses. Simon & Schuster merger documents: they just guess whether a book is going to be popular.

But big businesses are hungry: Elsevier is bidding on ICE contracts. Tying back to ©: Hachette is a case in point. Are we going to allow libraries without the strictures imposed by publisher agreements copy & lend works while protecting users’ privacy? We should insist on the public benefits of privacy. Compare to invasive level of detail demanded for 1201 exceptions.

We don’t have enough privacy-© overlap in scholarship. We have to recognize the various other interests to address & name. And remember that we have to deal w/privacy overrides in contracts—that’s why ownership is not the answer for privacy. AI is an opportunity to bring privacy folks into consultation.

It’s worse when people have to pay twice—both for access to content and then with their data. It should be one or the other: content for free, in return for sitting through ads, not double-dipping. People hate data brokers; they don’t like their info being used in completely unrestrained ways. Related to labor issues: people who are surveilled and subject to secret algorithms that can change their pay/kick them off a gig work app with no recourse to them: that’s a privacy issue!