9th Circuit reverses dismissal where plaintiff plausibly alleges that an ingredient is non-natural flavoring

Trammell v. KLN Enterprises, Inc., No. 24-6097 (9th Cir. May 15, 2026)

Perfect summary:

The defendant company in this case represented to consumers that its berry snacks product contained no artificial flavors. The plaintiff bought the product believing the representation to be true. It turned out, however, that the product contained an artificial flavor. Laboratory testing revealed that the product’s flavoring was not naturally occurring but made from an artificial petroleum substrate. At least this is what the plaintiff alleged (albeit with more detail) in his complaint. The district court concluded, however, that the plaintiff failed to state a claim and dismissed the complaint with prejudice. We disagree and reverse.

Wiley Wallaby Very Berry Licorice says on the front, “Natural Strawberry & Raspberry Flavored Licorice,” and “Naturally Flavored,” while the back label states, “Free of . . . Artificial Colors & Flavors.”

Trammell sued for violation of the CLRA, unjust enrichment, and breach of express warranty. Although the product represents that it is free of artificial colors and flavors, it allegedly contains an artificial flavor, malic acid. Natural malic acid, derived from natural fruit sources, is commonly known as “L malic acid,” while artificial malic acid, derived from a petroleum substrate and other synthetic components, is commonly referred to as “DL malic acid.”

Trammell alleged that the product was tested in a laboratory and that the testing results “establishe[d] that the malic acid used in these Products is DL malic acid, and not L malic acid.” Allegedly, the test used the “industry standard” method for testing for the “D isomer” of malic acid, which is “not present in any amount in” natural malic acid and which would indicate “the use of artificial DL malic acid” in the food or beverage tested.

The district court thought that wasn’t enough to plausibly allege that the malic acid was artificial, and that a reasonable consumer wouldn’t be misled because “Naturally Flavored” and “Natural Strawberry & Raspberry Flavored Licorice” were “not unambiguously deceptive”: “a reasonable consumer would not interpret the front label as unambiguously representing that [the Product] does not contain artificial ingredients.” The back label statement “Free of . . . Artificial Colors & Flavors” was not deceptive because the back label “discloses both natural and artificial ingredients in plain text.” “[N]owhere on the front or back label does it state that the product is ‘all natural,’ ‘100% natural,’ or ‘free of artificial ingredients,’” so “nothing about this product—a brightly colored, shelf-stable licorice candy—would lead a reasonable consumer to conclude that [the Product] is free of artificial ingredients when the product labels make no affirmative representations saying as such.”

This was error. The complaint satisfied Rule 9(b). It gave notice to the defendant and provided the court with “some assurance” that his theory of liability “has a basis in fact.” Trammell alleged the specific laboratory that performed the testing; he provided a date of the testing; he explained the qualifications of the laboratory (“a reputable independent food testing and analysis laboratory that has conducted testing for the food and beverage industry since 1984”); and he discussed the laboratory’s “industry standard” methodology for detecting artificial malic acid by testing for the presence of the “D isomer” of malic acid, which is “not present in any amount” in natural malic acid. That was specific enough, and more specific than the allegations in cases on which the district court relied.

As for the merits, “Trammell plausibly pleaded that a reasonable consumer is likely to be deceived by a product that claims to be free of artificial flavors when that claim is (allegedly) not true.” Even if “Natural Strawberry & Raspberry Flavored Licorice” and “Naturally Flavored” wasn’t false or misleading, the back label makes a specific claim about being “Free of . . . Artificial Colors & Flavors,” Trammell has plausibly pleaded that was false or misleading.

Nor, contrary to the district court’s reasoning, did the back label actually disclose both natural and artificial ingredients:

The ingredients list on the back label does not disclose, on its face, which of the ingredients are artificial. Indeed, despite claiming that artificial ingredients are plainly disclosed, neither the district court nor Defendant identifies which ingredients are artificial. Some ingredients, like “malic acid,” may come in two forms—natural or artificial. But the list does not say which it is. A reasonable consumer, not being a chemist, is not in a position to make that assessment when buying the Product. What a reasonable consumer can understand is the Product’s representation that there are no artificial flavors. When that clear representation is placed next to an ingredients list—a list that does not make apparent (1) which ingredients are flavors and (2) which of those ingredients are artificial—a reasonable consumer could plausibly be (mis)led into believing that the Product does not contain artificial flavors. If anything, the ingredients list here—which does include an ingredient called “natural flavor”—reinforces the Product’s free-of-artificial-flavors statement.

True, the product never claimed to be “‘all natural,’ ‘100% natural,’ or ‘free of artificial ingredients,’” but Trammell’s claim wasn’t that those things were false, but rather that the product was not free of artificial flavors. The fact that the product is “a brightly colored, shelf-stable licorice candy” “may go to the artificiality of the coloring and preservative; they do not necessarily bear on the artificiality of the flavors.”

Defendant also argued that the FDA considers “malic acid” a mere “flavor enhancer,” not a “flavoring agent.” “But whatever category malic acid falls under in the FDA’s regulatory scheme, the question is what a reasonable consumer expects, not what a regulatory expert in the food-and-beverage industry knows. And here, Trammell has plausibly alleged that a reasonable consumer expects the Product to be free of artificial flavors and that it would be misleading to that consumer if the Product contained an artificial petroleum substrate as a flavoring—whether as a flavor itself or as a flavor enhancement.”

Reminder: Penn/NYU/Harvard Trademark and Unfair Competition Scholarship Roundtable 2026: submit by June 1

Penn/NYU/Harvard Trademark and Unfair Competition Scholarship Roundtable 2026

The Trademark and Unfair Competition Scholarship Roundtable co-hosted by Harvard, NYU, and the University of Pennsylvania will take place this year at NYU. Now in its fifth year, the Roundtable is designed to be a forum for the discussion of current trademark, unfair competition, and right of publicity scholarship, covering a range of methodologies, topics, and perspectives. Five to six papers will be chosen for discussion over the course of the Roundtable, with each paper allocated an hour for discussion and assigned a commentator.

The Roundtable will be held on Friday, October 16, 2026. If there is a critical mass of papers, we may also extend the Roundtable through Saturday morning, October 17. Participation at the Roundtable will be limited and invitation-only and we expect all participants to have read the papers in advance. We will ask participants to rely if possible on research accounts to cover travel and accommodation, but if that is not possible we will have funds to cover costs.

We invite submissions from academics working on any aspect of trademark, false advertising, marketing, right of publicity, or related areas of the law. Priority will be given to those who can attend the entire event and a dinner the night of Friday, October 16. Submissions must be of full drafts in Microsoft word format. The deadline for submission is June 1, 2026. Decisions on participation will be made by June 15, 2026.

Submissions should be made by means of this Google form<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_forms_d_e_1FAIpQLSfpHCiFmcHZ6SCKp4oWYC1TDTVXC8MNxWlaw2XpMc4IF3GtHQ_viewform-3Fusp-3Dpublish-2Deditor&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=JCtF1L1KFZQA400a-MfN1LbbUwey4sno6RJztdDSMVk&m=frYEnTCmkzL5dabxDGK2I-SaTfGMF9qSkTH-tqc6v8_eRDuLE2XZ1o1PydGPHvx0&s=PUCAH7B4foFMqAuRCNa6K1oA1S63rzSVKgCgIrUKF8I&e=>. If you have any questions, please contact Barton Beebe at barton.beebe@nyu.edu<mailto:barton.beebe@nyu.edu>.

mix-and-match ad campaign actionable but "instant whitening" claims were mere puffery

Ledesma v. Hismile, Inc., 2026 WL 1146742, No. 24-cv-03626-KAW (N.D. Cal. Apr. 28, 2026)

Previously. Here, the plaintiffs provide enough allegations about the challenged teeth-whitening ad campaign to satisfy the court as to Rule 9 in the context of algorithmically generated ads, but still lose on puffery grounds. In essence, defendants allegedly exaggerated the teeth-whitening capabilities of their products through various means, such as unnaturally bright lighting and models who already have very white teeth, fake reviews, fake customer videos, claims of clinical proof, and claims of “color correction technology: purple and yellow are complementary colors opposite to each other on the color wheel, so purple ‘cancels out yellow undertones’ to reveal white teeth instantly.”

Plaintiffs alleged that there were thousands of ads posted on defendants’ social media accounts using the same core advertising methods, and that many advertisements “reus[e] the exact same clips in a different order, or with different actors reading similar scripts and acting out similar scenarios.” They brought California and NY claims.

Defendants argued that plaintiffs failed to identify the specific advertisements that they saw. But “California courts have recognized an exception to the requirement that a plaintiff identify the specific advertisement they relied upon ‘where a claim of fraud is based upon a long-term advertising campaign, which may seek to persuade by cumulative impact, not by a particular representation on a particular date.’ ”

The exception was satisfied here, where plaintiffs alleged that the ad campaign began more than ten years ago and saturates social media user feeds with videos, many of which reuse the same clips in different orders or with different actors reading similar scripts or acting out similar scenarios, all touting “the same false core message: that Hismile’s Products deliver ‘instant teeth whitening’ results.” Plaintiffs also sufficiently alleged their own individual exposure to this advertising campaign, including when and/or how long they saw the advertisements, what social media platforms they saw the advertisements on, more specific examples of the types of advertisements they saw, and the effect of those advertisements on Plaintiffs’ perception of the product -- namely, that the products “would produce an instant whitening effect.” That sufficed under Rule 9(b) to identify the who (Defendants), what (the advertising campaign and the types of advertisements viewed by Plaintiffs), when (the length of the advertising campaign and approximately when Plaintiffs were exposed to it), where (the social media platforms Plaintiffs viewed the ads on), and how (the allegedly false claim spread by the advertising campaign that Defendants’ products “instantly” whiten teeth).

Defendants argued that plaintiffs should have identified specific ads because they were still “readily accessible” on defendants’ social media. “But this argument only highlights the difficulty of identifying the specific advertisement; as Plaintiff points out, Defendant Hismile’s TikTok account posts at a rate of 15 or more videos a day, which results in over 1,000 videos in the span of 67 days. …To require that a plaintiff comb through hundreds to thousands of similar videos advertisements (assuming the viewed advertisement is still available) imposes a potentially insurmountable burden.” The court wouldn’t insulate high-volume social media advertising from scrutiny.

However, plaintiffs didn’t sufficiently identify the allegedly false/misleading influencers and customer reviews upon which they relied.

However, the case still had to be dismissed because “instant” whitening was puffery. (What about the clinical proof claim, above?) “Instant” wasn’t a quantifiable statement, but a general, subjective claim. Nor could plaintiffs use the duration of ads/demos during ads to show that defendants gave a definition to “instant.” That wasn’t a “binary and precise” criterion. “At what point in time would ‘instant’ no longer be an accurate description?” After all, “many things are advertised as ‘instant’ -- instant noodles, instant oatmeal, instant film, instant stain remover -- that are not literally instant but can take several minutes even if they are significantly faster than their non-instant counterparts.”

Costco's "free shipping" claims plausibly deceptive if online price is raised to account for shipping

Zaimi v. Costco Wholesale Corp., 2026 WL 1145798, No. 2:25-cv-01076-JHC (W.D. Wash. Apr. 28, 2026)

The court refused to dismiss statutory and common-law claims related to price differences between items that Costco sells online and in-store: online, Costco charges more for big-ticket items like couches to cover shipping, but advertises “free shipping.”  For example, one couch is available for $2,099.99 when bought in a physical Costco store but costs $2,399.99 when purchased online, and at checkout, “Shipping & Handling” is listed as “$0.00.” Within the online listing, in light grey font, Costco says that “Delivery, setup and packing removal [are] included,” and that “Items may be available in your local warehouse, prices may vary.” Also, there’s a webpage that says “Costco.com prices take into account shipping and handling fees not applicable to warehouse purchases,” but plaintiff alleged that “she was not presented with, and did not read, the fine print on Defendant’s customer service webpage admitting that those representations were false.” She brought claims under the Washington Consumer Protection Act (CPA) and California’s FAL, UCL, and CLRA, along with claims for breach of contract, breach of warranty, quasi-contract/unjust enrichment, and negligent and intentional misrepresentation, which the court declined to dismiss. I won’t discuss many of the details.

Costco argued that it disclosed the price differences and shipping costs. Online, the listing states that “[d]elivery, setup, and packaging removal included” in the stated price, and elsewhere on the website, it discloses that items are cheaper if bought in-store. Thus, believing that one would pay the same for the couch online as in the warehouse and pay nothing to have it delivered was patently unreasonable.

Zaimi rejoined that the checkout page statement, “Shipping & Handling $0.00,” induces reasonable consumers into believing they are paying $0.00 for shipping, and that general disclaimers (that items are available at a lower price in its warehouses) do not “negate the clear message that ‘Shipping & Handling $0.00’ conveys to reasonable consumers.” The court found no previous case to be entirely on point, but, at the motion to dismiss stage, this theory was plausible. The online listing didn’t state that the prices will be lower in-store: It states that the “prices may vary.” And plaintiff plausibly alleged that consumers “expect free shipping,” given the ubiquity of online shopping, even for large purchases like furniture.  

As for injury under Washington consumer protection law, it was enough to allege that she “would not have made the online purchase if she had known that she was paying for shipping or that Defendant charged more for the product online.”

slack fill claims proceed because protein powder is harder to understand than cookies

Cody v. Gainful Health Inc., 2026 WL 1428888, No. EDCV 25-01373-KK-SPx (C.D. Cal. May 19, 2026)

Gainful sells protein powder nutritional supplement products; plaintiff alleged unlawful slack fill. Cody bought a “28 Servings” package that “included two pouches or bags,” each weighing 14.8 ounces and “contain[ing] 14 servings per container,” and 28 “Flavor Boost” packets. Each pouch was “opaque” and did “not allow the customer to fully view its contents.” The nutrition label on the back of each pouch indicated a serving size of “1 scoop (30 g).” She saw the image online, which “depicted a totally opaque Product container that did not allow Plaintiff ... to see the fill level within such container.” The image also showed the “Flavor Boost” packets, “which indicated the far greater size of the Product’s container by comparison.” The Amazon product listing disclosed 28 servings, weight of 30 ounces, and package dimensions of 10.47 by 9.92 by 4.76 inches. But it did “not disclose any ... disclaimer such as a reference to a fill line or other caveat disclosing that the Product’s container was not packaged to be substantially full of protein powder.”

The court found the claims sufficiently pled under the relevant California statutes and common-law fraud. Cody sufficiently alleged an affirmative misrepresentation by using an opaque and “oversized” container, “which implied ... that the container had more protein powder than it actually contained,” and failure to disclose the non-functional slack fill in violation of California law.

“Because a consumer viewing the Product listing on Defendant’s online storefront has no ‘reasonable opportunity prior to purchase to shake or otherwise manipulate’ the Product to determine whether the Product’s packaging ‘is filled to the brim,’ they “may reasonably rely on the size of the packaging and believe that it accurately reflects the amount [they are] purchasing.’” Here, the packaging as depicted on the online storefront conceals that the “actual product only occupies approximately 60 [percent] of the exterior space represented by the Product’s packaging container.”

What about the quantity disclosures that did exist? First, it was unclear whether the listing included the back label, making any information on that label “irrelevant to determining whether a reasonable consumer is likely to be deceived.” Listing dimensions, weight, and number of servings “do[ ] not necessarily provide the reasonable consumer a meaningful metric for how much powder is in the container,” as a reasonable consumer is “not necessarily aware” of how a product’s weight and number of servings “correlate[ ] to the product’s size.”

Even if Cody saw the back label, deception was still plausible. Gainful cited several cases finding “no reasonable consumer would be plausibly deceived” where a package “provide[s] a consumer with a ‘rough estimate’ of the amount of final product that can be made from its contents.” But each of those cases “involved products that were discrete, countable goods, the number of which were disclosed on the label.” The instructions on the back label did not indicate how much protein powder a consumer should mix with 8 oz of milk or plant-based milk or blend with 8 oz of the consumer’s “favorite beverage.” Nor did the instructions indicate how much “Flavor Boost” a consumer should mix with milk, blend into a smoothie, or add into a baked good. While the back label suggested a consumer could “[a]dd a scoop” of the Product to their “favorite baked good recipe,” it didn’t specify the type or amount of baked goods to which a scoop of the Product should be added. Without that, a “scoop” of protein powder “is not an intrinsically meaningful metric of quantity,” even when “the consumer can calculate the approximate weight of each scoop.” As another court said: “A label that states a cannister contains 20 scoops of protein powder communicates materially less information to a consumer than a label stating that a cannister contains 20 cookies.”

She also sufficiently alleged that the slack fill was nonfunctional. It sufficed to allege that (1) “[t]here is no risk of the powder breaking or sustaining damage if there was less empty space in the Product’s container,” (2) “the machines used for enclosing the contents of the package have the capacity to add more content to the containers used to enclose the contents of the Product,” and “[a]t most, a simple recalibration of the machines would be required,” (3) “any settling” of the Product “occurs immediately at the point of fill” because of “the Product’s density, shape, and composition,” (4) the Product’s packaging “contains no instructions to consumers that they should mix together the Product’s whey protein powder with any Flavor Boost within the Product’s pouch container,” (5) “[t]he package is intended to be discarded immediately after the Product is consumed” and is not a “durable commemorative package” or “promotional package,” and (6) “Defendant can easily increase the quantity of the Product in each package (or, alternatively, decrease the size of the packages) significantly.” These plausibly alleged that none of the safe harbor provisions in California’s slack fill law applied.

contract, 230, and lack of specificity defeat "chat scam" claims against OnlyFans

N.Z. v. Fenix Int’l Ltd., 2026 WL 1425183, No. 8:24-cv-01655-FWS-SSC (C.D. Cal. May 19, 2026)

Plaintiffs sued OnlyFans (Fenix) and other entities who manage OnlyFans models based on allegations that they concealed the fact that plaintiffs weren’t authentically chatting with OnlyFans models, despite the centrality of the promise of authentic personal interaction to OnlyFans. One of OnlyFans’ “Core Values” is the following: “Giving creators control to own and monetize their content and to foster authentic relationships with their followers and fanbase.” Also, OnlyFans urges Fans to subscribe to specific Creators using the following language: “SUBSCRIBE AND GET THESE BENEFITS: Full access to this user’s content [/] Direct message with this user [/] Cancel your subscription at any time.”

The agency defendants allegedly “sell their services to OnlyFans Creators with promises that they can increase a Creator’s revenue exponentially—without the Creator ever having to actually do what OnlyFans promises: ‘directly connect’ with Fans.” They allegedly “contract with ‘Chatters’ to conduct most, if not all, of the communications between the Creators and the Fans. Without the Fans’ knowledge, the Chatters impersonate the Creators when direct messaging with Fans.” “Agencies even provide Chatters with actual ‘scripts’ similar to those used by telemarketers and call center employees, which give Chatters a specific workflow to follow in order to maximize the amount of money extracted from any given Fan.”

In recent years, agencies have allegedly developed specialized tools to facilitate the use of a single OnlyFans account by a team of Chatters. Further alleged: “OnlyFans is either aware of, or intentionally ignorant to, the use of CRM software on its platform—not least because its use violates OnlyFans’ Terms of Service—but chooses to do nothing to prevent the use of this software because of the increased revenues that CRM software facilitates.” And: “OnlyFans knew, and should have known, that its Creators were using Chatters to engage with Fans— including based on the revenue being generated by those Creators; the number of direct messages with Fans; the number of different login sessions to a given Creator’s account, often from many different locations and IP addresses; and the number of Fan complaints (which OnlyFans ignored).” As a result, they alleged, “the ‘Chatter Scams’ involve massive breaches of confidentiality and privacy violations in which intimate communications and private and/or personal information about Fans—including photos and videos—are distributed and/or accessible to numerous unauthorized parties.”

Plaintiffs sought to assert various claims against OnlyFans and the agencies, including RICO, VPPA, breach of contract, fraud, and California UCL/FAL claims.

§ 230: The VPPA and RICO claims against OnlyFans were barred because they sought to hold OnlyFans liable solely for facilitating, or failing to moderate, communications through the OnlyFans platform. (The other RICO claims failed because they were RICO claims.)

However, the breach of contract claim depended on claims of breach of  a contractual promise that OnlyFans “will use reasonable care and skill in providing OnlyFans” by collecting “data sufficient to identify Chatter-operated accounts—including multiple simultaneous logins from disparate geographic locations—and failed to act on this information.” That wasn’t seeking to hold OnlyFans liable solely for facilitating communications but rather to require it to ensure the users are operating OnlyFans properly and that OnlyFans acts on the simultaneous logins. (Eric Goldman will hate that!)

And, to the extent that misrepresentation claims were based on OnlyFans’ own representations that users can “ ‘direct message’ ..., chat ‘1 on 1’ ..., and build ‘genuine’ and ‘authentic’ connections” with Creators, those weren’t barred. The claims wouldn’t require OnlyFans to monitor third-party communications to avoid liability. (But the breach of contract claim would!) Anyway, although “content moderation [may be] one possible solution” for OnlyFans to fulfill its alleged duties, “the underlying duty being invoked by the Plaintiffs … is the promise” or representation itself.

VPPA: The VPPA provides that “[a] video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person.” The Ninth Circuit has adopted the ordinary person standard to determine what constitutes PII, holding that “personally identifiable information means only that information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior.” Under the TOS, plaintiffs agreed and acknowledged that their “[c]ontent may be viewed by individuals that recognise [their] identity” and that OnlyFans is “not in any way ... responsible” if Plaintiffs “are identified from [their] Content.” And plaintiffs failed to sufficiently allege OnlyFans’ knowledge.

However, they sufficiently pled that the agency defendants knowingly disclosed PII: they alleged that they shared personal information in chats with Creators, including their full legal name and photos of their face, and that the Chatter Scams function by “creating a communication history viewable by Chatters” which consists of “intimate knowledge of the Fan’s personal information, conversation history, and preferences,” and most importantly, “the specific content that they requested and/or viewed.” The agency defendants allegedly disclosed PII from Fans to Chatters by sharing login information or via CRM software.

Under the VPPA, “A video tape service provider may disclose personally identifiable information concerning any consumer ... to any person if the disclosure is incident to the ordinary course of business of the video tape service provider.” At this stage, that exclusion didn’t require dismissal.

Breach of contract: the statement “ ‘Direct message with this user [Creator]’ ” wasn’t part of the TOS, which contained an integration clause stating that users have “[n]o implied licenses or other rights are granted to [them] in relation to any part of OnlyFans, save as expressly set out in the Terms of Service” and that the TOS “form the entire agreement between [Fenix International] and [the user] regarding [the user’s] access to and use of OnlyFans,” and “govern [Plaintiffs’] use of OnlyFans.”

Failure to provide the platform with reasonable care and skill: It wasn’t enough to allege that OnlyFans allowed management agencies to use Chatters to impersonate Creators because this theory of liability imposed a monitoring obligation on Fenix Defendants. Nor was merely designing and providing tools for OnlyFans users sufficient to allege a breach; plaintiffs didn’t allege how tools such as Fan spending analytics and “inter-shift notes features” enable, or were specifically designed for, the Chatter Scam.

Implied covenant of good faith and fair dealing: Failed because plaintiffs sought to impose duties beyond those incorporated in the specific terms of the alleged contract.

Also, fans were not third-party beneficiaries of the Creator TOS, which required Creators to be individuals and safeguard their accounts given its express language saying there weren’t any third-party beneficiaries.

Fraud and deceit: Also failed against OnlyFans. OnlyFans made explicit disclosures about the use of third parties, its inability to control how Fan content is used, and the materials provided to Fans.

UCL/FAL: Not sufficiently alleged against agency defendants because plaintiffs didn’t allege the specific representations at issue.

CFP: Ninth Junior Faculty Forum on Law and STEM

Call for Papers

Ninth Junior Faculty Forum on Law and STEM

 

Stanford Law School, November 6-7, 2026

 

The Northwestern, Penn, and Stanford law schools are pleased to announce a Call for Papers for the Ninth Junior Faculty Forum on Law and STEM, which will be held at Stanford on November 6-7, 2026. The Forum is dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM). We are seeking submissions from junior faculty in any discipline interested in presenting papers at the Forum. The submission deadline is June 15, 2026.

 

A group of junior scholars will be chosen on a blind basis from among those submitting papers by a jury of accomplished scholars with expertise in Law and STEM. One or more senior scholars, not necessarily from Northwestern, Penn, and Stanford, will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. Participating junior faculty are expected to stay for the full duration of the Forum.

 

Our goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa. Preference will be given to papers with strong interdisciplinary approaches integrating these two areas of study.

 

We invite submissions on any topic related to the intersection of law and any STEM field. Potential topics include (but are not limited to):

• Artificial intelligence
• Autonomous vehicles
• Biomedical research and drug development
• Biometrics
• Bitcoin and other blockchain technologies
• ChatGPT and large language models
• Climate change technologies
• Computational law and algorithmic decisionmaking
• Cryptocurrency and NFTs
• Digital health and health data
• Genetics, epigenetics, and gene editing
• Machine learning and predictive analytics
• Nanotechnology
• Neuroscience and law
• Online security and privacy
• Personalized medicine
• Regulation of online platforms
• Robotics
• Spectrum policy
• Synthetic biology
• Virtual and augmented reality

 

There is no publication commitment. Northwestern, Penn, and Stanford will cover presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed. Authors of accepted papers are expected to attend the conference and present their work in person.

 

QUALIFICATIONS: To be eligible, authors must be teaching at a U.S. school of higher education in a tenured or tenure-track position or as a Visiting Assistant Professor or Fellow and must have received their first tenure-track appointment no more than seven years before the conference. Authors in tenured and tenure-track positions will be given priority. American citizens or permanent residents teaching abroad are also eligible to submit provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years, and that they earned their last degree within the past ten years. We accept jointly authored submissions so long as the presenting coauthor is individually eligible to participate in the Forum and none of the other coauthors has taught in a tenured or tenure-track position for more than seven years. Papers that will be published prior to the meeting are not eligible. Authors may submit only one paper.

 

PAPER SUBMISSION PROCEDURE: Electronic submissions should be made through this website. Please remove all references to the author(s) in the paper. The submission deadline is June 15, 2026.  We will notify applicants as soon as practicable thereafter whether their papers have been selected.
https://forms.gle/PPPn823V1DmYwQvP6

 

Any questions about the submission procedure should be directed to Professor Lisa Ouellette (ouellette@law.stanford.edu).

 

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to Lisa Ouellette at Stanford Law School, David Schwartz at Northwestern University Pritzker School of Law, or Christopher Yoo at University of Pennsylvania Carey Law School.

Lanham Act requires less in the way of injury from competitors than California FAL/UCL

Eight Sleep Inc. v. Orion Longevity Inc., 2026 WL 1243359, No. 2:26-cv-02460-SB-KS (C.D. Cal. May 4, 2026)

Eight Sleep “developed and patented the Eight Sleep Pod, a ‘bio-tracking mattress cover’ that optimizes sleep by using biometric measurements to automatically adjust the temperature of the user’s bed.” Defendant Orion developed a competing temperature-regulating mattress cover with similar features. Eight Sleep sued for patent infringement, which I will not discuss (the patent claims survive), and false advertising, which I will.

Orion allegedly made false and misleading statements about the Orion Sleep System’s features and availability, including by representing, during development, capabilities not borne out in the product released to the market, in violation of the California UCL and FAL. Orion argued that there was no statutory standing.

Both statutes “require[ ] that a plaintiff have ‘lost money or property’ to have standing to sue,” which requires the plaintiff to “demonstrate some form of economic injury.” The economic injury must also be “ ‘as a result of’ the unfair competition or a violation of the false advertising law,” which requires the plaintiff to show “a causal connection or reliance on the alleged misrepresentation.”

Eight Sleep relied on the Ninth Circuit TrafficSchool case’s statement that courts have “generally presumed commercial injury” when the parties “are direct competitors and [the] defendant’s misrepresentation has a tendency to mislead consumers.” But that decision addressed the Lanham Act, which requires only likely injury. Under the UCL and FAL, actual monetary loss is required.

The complaint only conclusorily alleged that as a result of Orion’s false advertising, Eight Sleep’s goodwill was damaged, and it “lost sales because customers who would have otherwise purchased its products, instead purchased Orion.” That wasn’t enough: “First, the law is unsettled as to whether injury derived from a customer’s reliance on fraudulent advertisements may support a false-advertising claim by a competitor who did not rely on the fraud.” Federal district courts are increasingly accepting reliance by deceived consumers rather than the competitor-plaintiff, but, even under that more permissive approach, the complaint was insufficiently detailed. Similarly, allegations Orion “repeatedly approached investors with false claims” about the parties’ products and Eight Sleep’s profits and margins, and that Eight Sleep “lost investment opportunities that would otherwise have been available from investors who would have, but for Orion’s false statements to investors, invested in Eight Sleep” didn’t identify specific misrepresentations, even if it were clear that statements to investors are actionable as advertisements under the UCL and FAL.

What about Lanham Act claims?  At least one false statement was plausibly alleged: a chart purporting to compare the features offered by “Eight Sleep” and “Orion,” suggesting that Orion offered all 10 of the features listed while Eight Sleep offered only one (embedded sleep sensors). One of the features identified for Orion’s product was “5-Stage sleep tracker,” which the complaint alleges “never existed.” The false statement was posted on Orion’s during “some of the busiest shopping dates in the United States, including Black Friday.”

high sugar content doesn't make "Breakfast Essentials" name or health claims misleading

Testori v. Nestlé Health Science US Holdings, Inc., --- F.Supp.3d ----, 2026 WL 1282540, No. 1:25-cv-01318-JLT-CDB (E.D. Cal. May 11, 2026)

The court dismissed California claims against Carnation Breakfast Essentials Nutritional Drink. The drink label highlighted its 10g of protein per serving, while “fail[ing] to disclose with equal prominence that the Product’s first two ingredients are water and ... 11 grams of sugar per serving.” Reasonable consumers would allegedly not expect a product marketed as ‘Breakfast Essentials’ to contain more sugar than protein.

The court first addressed preemption. Health or nutrient content claims are regulated by the FDA, but not every statement is a health or nutrient content claim. “Based on the FDA’s express decision to not recognize sugar as a disqualifying nutrient, various district courts have now adopted the finding that ‘any claim under state law solely premised on the notion that [a product’s] high sugar content made its health or implied nutrient content claims misleading is preempted.’”  

In this case, the “nutritional drink” statement was right above four additional statements stating: “10g protein,” “21 vitamins + minerals,” “3x vitamin vs. milk,” and “2x calcium vs. Greek Yogurt.” The context of the packaging thus “implies that the reason that the drink is a nutrition drink is that it contains the nutrients ... listed directly below that phrase on the bottle.” In Clark v. Perfect Bar, LLC, 816 F. App’x 141 (9th Cir. 2020) (Mem.), the court said: “Allowing a claim of misbranding under California law based on misleading sugar level content would ‘indirectly establish’ a sugar labeling requirement ‘that is not identical to the federal requirements,’ a result foreclosed by our precedent.” Clark dealt with facts almost on all fours with the facts alleged here. The complaint was filled with contentions related to “health” and “nutrition.” Thus, preemption applied.

Even if it didn’t, plaintiff failed to state a claim. Although consumers should not be expected to ignore the misleading representation on the front label and discover the truth on the back label, here, “none of the challenged statements reference the sugar content of the product[ ] ... [or] even mention[ ] sugar.” Any ambiguity was cured by the accurate reporting of the sugar content on the Nutrition Facts Panel, especially because the product didn’t make any assertion about overall “health” or “balanced/healthy diet.” The product didn’t become less—or cease to be—“nutritional” due to the added sugar. The reference to “10g protein,” “21 vitamins + minerals,” “3x vitamin vs. milk,” and “2x calcium vs. Greek Yogurt” was not a claim that the product was “nutritionally balanced.” Nor did the front label mention or suggest anything about added sugar.

In a footnote, the court commented that “Modern advertisements frequently use phrases like, ‘You need this,’ ‘You have to use this,’ or ‘This is essential for your health.’ A reasonable consumer would understand the need to view such statements with a grain of salt, and not take an expansive, strenuous, and atextual interpretation of them ….”

plaintiff can use UCL against healer claiming advanced degrees and magical powers

Dwarakanath v. Priyanka, --- F.Supp.3d ----, 2026 WL 1215667, No. 5:25-cv-06465-PCP (N.D. Cal. May 4, 2026)

Dwarakanath sued Vaidyaji Priyanka (VP), AUM Ayurveda (AUM), and some Does, alleging among other things false advertising. VP allegedly ran a cult and encouraged Dwarakanath’s daughters and then-wife to file frivolous domestic violence restraining order applications against him. Although he was granted custody, his now-ex-wife allegedly violated multiple court orders by retaining improper custody of the girls and refusing to deliver them to him, encouraged by VP.

The court allowed UCL claims to proceed under all three UCL prongs, alleging unlawfulness from violation of RICO and various fraud statutes, unfairness because defendants caused him to both relinquish his parental control over his young daughters and pay for unnecessary medical care, and fraudulence because defendants’ untrue and misleading representations about their holistic care practices allegedly deceived him and other members of the public.

Although an earlier false advertising claim failed because plaintiff didn’t allege misrepresentations that were directed to the public rather than to just one individual, the UCL provides standing to people injured by prohibited practices, as alleged here.

Nor did defendants identify specific statements that were nonactionable puffery. Several of the statements Dwarakanath pled were sufficiently specific to preclude a finding of nonactionable puffery.

For example, VP claims to have “multiple degrees in business, medicine, and Ayurvedic medicine, from prestigious institutions like Kings College in London and Columbia University,” and yet allegedly lacks any relevant degree or other qualifications to be a medical doctor. She claims to be in her mid-sixties and has two young children, which she offers as evidence that she “has magical powers that can preserve youth and fertility.” She claims she can cure manic depression, bipolar disorder, and schizophrenia using herbal treatments and prayer. And she claims that she cured [plaintiff’s ex-wife] of cancer three separate times through “healing” massages.

These statements were specific enough: they clearly identified “an illness or health issue (schizophrenia, fertility troubles, cancer) and a promise to cure them,” and claims to be a licensed medical professional were also not puffery. “Defendants might have been more successful if they had argued that it was unreasonable to rely on certain statements, like the claim that VP could cure fertility troubles because of her ‘magical powers,’” but didn’t raise that—and the FTC at least thinks that targeting vulnerable people with magical claims can be deceptive. Historically, courts have not found the First Amendment to be a barrier to fraud claims against healers who solicited money from sick people to heal them through mystical or magical powers. I don’t know whether that pattern would continue today in our fraud-forward economy.

unauthorized sales of books as "new" don't violate the Lanham Act, even with default

Global Brother SRI v. Altun, No. CV-25-00426-TUC-SHR, 2026 WL 1413605 (D. Ariz. May 20, 2026)

I don’t blog many false advertising default judgment opinions; this one is different because it denies the motion. Global alleged that it publishes books, including The Lost Book of Herbal Remedies and The Lost Book of Herbal Remedies II. Altun allegedly, without authorization, advertised and sold these books online, including through Amazon and other marketplaces, labeling their condition as “new” and selling them at a “significantly inflated” price, thereby misleading consumers to believe “the listing reflects a premium authorized version or a limited official release.” Global alleged false advertising in violation of the Lanham Act because they are “likely to mislead a significant portion of consumers” and “resale of these works without Plaintiff’s quality control, branding oversight, or packaging integrity renders the products materially different.”

Factors for evaluating whether default judgment should be entered include the merits of the substantive claims: a court must ask whether the complaint stated a claim.

Global failed to show that using “new” to describe the books was literally false. It pointed to no actual differences in defendant’s copies or dissatisfied customers. Global’s lack of authorization or involvement in resales, without more, wasn’t a violation of the Lanham Act.

"toddler drink" plausibly misleads about suitability as next stage after infant formula

Castro v. Abbott Laboratories, Inc., --- F.Supp.3d ----, 2026 WL 184533, No. 25 CV 377 (N.D. Ill. Jan. 23, 2026)

Abbott makes Similac, a milk-based formula powder drink for infants and toddlers. “Go & Grow Toddler Drink by Similac” and “Pure Bliss Toddler Drink by Similac” purport to meet the nutritional needs of children between the ages of twelve and thirty-six months. The labels were allegedly similar to the labels for infant drink formula and indicate that toddler drinks are the next step drink following infant formula. Plaintiffs sought to represent consumers from Illinois, Massachusetts, Florida, Michigan, Minnesota, Missouri, New Jersey, New York, and Washington.

The toddler drink cans’ similarities to the infant drink cans allegedly falsely represent “that the toddler drink is the logical next nutritional step in formula, even when doctors and experts do not necessarily recommend toddler formula drinks.” The labels were also allegedly false and misleading “because they focus on the products’ purported health benefits while omitting information regarding the health harms of their added sugar content.”

The toddler formula label includes the words “Stage 3,” and that label is visually similar to the infant formula label containing the words “Stage 1” and “Stage 2.” Abbott argued that a reasonable consumer would not ascribe the “next stage” meaning to the label because the similarity of the labels and the words “Stage 3” are not nutritional recommendations.  The court disagreed, given the pleading stage. “Stage” can plausibly indicate a progression. “And the similarity of the cans, as well as their placement on the same shelves as the infant formula, could lead a reasonable consumer to conclude that the toddler formula is nutritionally recommended for children aged twelve to thirty-six months in the same way that infant formula is nutritionally recommended for children up to twelve months.”

The court distinguished Martelli v. Rite Aid Corp., No. 21-CV-10079 (PMH), 2023 WL 2058620 (S.D.N.Y. Feb. 16, 2023), which dismissed a similar claim, but there the label also included a disclaimer stating that the product was “intended to supplement the solid-food portion of the older baby’s diet” and was “not intended to replace breast milk or starter formulas.” Whether the disclaimer made a difference was an issue for later.

Additionally, plaintiffs alleged that Abbott’s representations about the health benefits of the drink were misleading because the formula contains four grams of added sugars, which are decidedly unhealthy. The cans did disclose their sugar content on the back labels, but again it was plausible that a reasonable consumer could think they didn’t have to consult the back.

This reasoning also allowed a claim for breach of the implied warranty of merchantability: plaintiffs alleged that “a balanced, nutritious diet excludes sugar-sweetened beverages for children above 12 months, and otherwise limits added sugar to less than 5% of calories, whereas regular consumption of the Toddler Drinks is detrimental, rather than beneficial to health.” They sufficiently alleged that the toddler formula is not “fit for the ordinary purposes for which such goods are used,” namely, to provide a healthy supplement to a toddler’s nutrition.

"complete nutrition" claims for supplements are obviously untrue, but GLP-1 related claims could live again

Cavallaro-Kearins v. Grüns Nutrition Inc., 2026 WL 1398422, No. 25-cv-4998 (LJL) (S.D.N.Y. May 19, 2026)

The court dismissed this California & New York false advertising claim against Grüns based on its Superfood Greens Gummies for Adults and Grüns Cubs for Kids, challenging its claims to offer a “comprehensive” and “complete” solution for daily nutrition, to provide “100% of kids’ daily nutrition,” “all-in-one” support for GLP-1 users, and to act as a replacement for essential nutrients. In this specific context, these claims were unbelievable and demanded reference to the ingredient list, which would clarify matters. Grüns also advertised Grüns Adults as containing “more fiber than 2 cups of broccoli per pack,” the same amount as “9 cups of raw spinach,” and as containing more than 6 grams of fiber, stating that “you’d need a whole salad bar to match the fiber in just one pack of Grüns.” Grüns Kids also claimed it was the “very best way to get all the vitamins, minerals, fruits and veggies growing kids … need” and specifically targeted parents of children with sensory processing difficulties.

But protein, fats, and omega-3 fatty acids are necessary nutrients that aren’t included. Also, the Gummies “contain only minimal amounts of other key minerals like iron and lack others such as calcium altogether.” And the daily recommended amount of fiber for an adult is 28 grams of soluble and insoluble fiber per day, whereas Grüns contain only six grams of “soluble fiber”; the fiber contained in real fruits and vegetables is allegedly fundamentally different from that contained in Grüns, which “may aggravate rather than relieve the very conditions it claims to solve.” Grüns also claimed testosterone benefits that were allegedly misleading, as were claims to multiply, enhance, or substitute for protein. Without calcium or magnesium, the gummies were allegedly not even qualified as a standard multivitamin.

While these challenges (and others) are serious, the court focused on the “comprehensive nutrition” and similar claims. And because it’s obvious that you can’t get complete nutrition from gummies, those claims weren’t plausibly deceptive: combining puffery with ambiguity doctrine, a reasonable consumer would have had to look at the ingredients to figure out the actual nutrient profile:  

Plaintiffs do not contend that the language of the package should be taken literally—that the Gummies provide either complete or comprehensive nutrition such that a person who eats a pack of the Gummies need not eat anything else in order to survive. That is what the plain text read in isolation states. … Such a representation might be reasonably credited if made by a wellness resort or health food spa about the program it offers for visitors. When made by a purveyor of gummies, it is plainly hyperbolic, and no reasonable consumer could understand that a small packet of gummy bear supplements that weighs .7 ounces and that is advertised as a “Dietary Supplement” could replace the need to eat any other foods.

The court thus distinguished Weinstein v. Rexall Sundown, Inc., 2024 WL 4250353 (E.D.N.Y. Aug. 26, 2024), which found plausible misleadingness when the advertiser touted “complete multivitamin gummies” accompanied by the language that the product contained “B Vitamins” and “13 Essential Nutrients” but the product did not in fact contain Victims B1, B2, and B3. Likewise, Cabrera v. Bayer Healthcare, LLC, 2019 WL 1146828 (C.D. Cal. Mar. 6, 2019), held that the claim that a product was a “complete” multivitamin was plausibly misleading when the product was missing 13 vitamins that the body requires. In both cases, the adjective “complete” modified the noun “vitamin.”

Do reasonable consumers understand that, on gummies, “nutrition” literally means all the macro and micronutrients we need? Plaintiffs walked into this problem by talking about fats, protein, etc. They offered the argument that a reasonable consumer would understand that Gummies supply “all essential nutrients,” or “essential nutrients such as calcium and magnesium,” or “all other supplements,” or that the “Gummies provide what fruits and vegetables provide—the same nutrition, in another form.”

But, the court reasoned, if the term “comprehensive nutrition” is not understood by its dictionary definition, then it is ambiguous. [I’m more sympathetic to the “all essential [micro]nutrients” interpretation because that’s what you’d expect from a “comprehensive” supplement: one pill to take! At least I can imagine a substantial number of ordinary consumers thinking that.] And we know that, when there’s ambiguity, a reasonable consumer must consult the ingredient list (and apparently keep track of things like magnesium and iron being missing). I think this is an example of why “ambiguity” is troublesome: the court doesn’t ask whether a reasonable consumer could read the claim as unambiguous and not seek further information, but only whether there’s ambiguity in the abstract.

“No reasonable consumer could understand from the package as a whole that the Gummies contained ‘key macronutrients like protein and fat,’ that it contained adequate “amounts of critical nutrients like fiber and iron,’ or that it contained ‘calcium and omega-3 fatty acids,’ much less that it could ‘replace the nutritional complexity of fruits and vegetables and all other targeted supplementation.’”

As for the off-package claims, they mostly “parrot” the language of “comprehensive nutrition,” or use the adjective “comprehensive” “in an even less specific manner than on the packaging.” They could not save the claim.

What about the specific health issues touted? Some were mere puffery: “Gut health that fits in a lunchbox” and “#1 energy hack.” Grüns also advertises that the Gummies “help reduce colds by 70%,” result in “stronger hair in just 30 days,” and “boost T-levels,” but neither plaintiff alleged that she relied on those ads.

A subset of statements were plausibly misleading: those targeting GLP-1 users in particular. “Even if the advertisements could be understood to be ambiguous, there is no surrounding context that would dispel a reasonable consumer’s understanding that the Gummies contain the nutrients needed to fill gaps created by the medication.” However, plaintiffs failed to sufficiently plead that use of GLP-1 medications creates specific nutritional gaps and that the Gummies do not in fact fill those gaps. It wasn’t enough to allege that the “formulation is not tailored to the specific needs of GLP-1 users and lacks the dosage strength, clinical targeting, or comprehensiveness to meaningfully address the deficiencies it invokes.” This part of the claim was dismissed without prejudice.

it doesn't infringe to use a similar concept in ad photos

Kitsch LLC v. Viori Beauty PBC, 2026 WL 1356424, No. 2:25-cv-10830-SPG-AGP (C.D. Cal. May 8, 2026)

Kitsch is “a leading beauty product and accessories manufacturer and sells its products in major retail stores and online through its website and third-party websites, such as Amazon.” It sells solid shampoo and conditioner products, marketed on Amazon with a photograph depicting the shampoo and conditioner placed on top of the packaging, with images of the ingredients contained in the bars scattered below the packaging.

L: defendant; R: plaintiff. Obvious substantial similarity, right?

Viori also sells solid shampoo and conditioner, including through Amazon’s online marketplace. Its advertising is allegedly highly similar to Kitsch’s, in that “both feature the products shown next to each other with the physical products being placed on top of the packaging and with images of the ingredients contained in the bars scattered below the packaging,” and its packaging contains wording shown in the same order as Kitsch’s packaging, with the same words in larger font.

Viori allegedly didn’t use this ad style until after Kitsch entered the market. Kitsch also alleged that there’s no need for it because other sellers display their products in distinct ways, and that Viori didn’t use this photo on its own website, only on Amazon. 

Plaintiff's examples of noninfringing packaging

Further, purchases from Viori allegedly arrived in different packaging.

All of this allegedly was in the service of confusing consumers, so Kitsch alleged claims for false advertising under the Lanham Act, copyright infringement, and violation of California’s Unfair Competition Law. The court dismissed the complaint because look at those pictures.

Kitsch didn’t plausibly allege any false statement of fact, which defeated both federal false advertising and state UCL claims. Among other things, the product shown in the supposedly different packaging was not the same product as the product shown in the Viori photo. “Viori Hidden Waterfall Shampoo and Conditioner Bar Set Made with Rice Water” is not “Viori Shampoo Bar & Conditioner Bar + Bamboo Holder.” They didn’t show that Viori’s advertised packaging is any different from the actual product. Where, as here, “the allegations of the complaint are refuted by an attached document, the Court need not accept the allegations as being true.”

Even if the actual packaging differed from that in the image, that didn’t plausibly injure Kitsch. Kitsch argued that it was injured because Viori copied its advertising. “Thus, it would make no difference to Plaintiff’s alleged injury whether Defendant’s products arrive in the same packages as advertised.”

Copyright infringement: Not always resolvable at the motion to dismiss stage; very much so here. The photos here received relatively thin protection: a “commercial product shoot” allows for only a “narrow range of artistic expression.” None of the photos contained any particularly unusual elements that defy “the conventions commonly followed” in such photos. Indeed, the competitors’ submitted photographs “bear numerous similarities to the parties’ photographs”:

(1) all five photographs depict a set of two products, including both solid shampoo and conditioner; (2) all five photographs depict both the packaging and the shampoo and conditioner outside the packaging; (3) all five photographs are set against an off-white background with no other foreground or background features; and (4) three of the five photographs include images of the ingredients contained inside the products. Thus, these elements appear to be standard features commonly associated with such advertising images.

Given the thinness of the copyright, only “virtual identical” copies would infringe; those were not present:

Most significantly, while Plaintiff’s photograph places the products directly on top of the packages, Defendant’s photograph places the products behind the package, suspended in mid-air and partially obscured by the package. Defendant’s image also contains reflections underneath the packaging and ingredients, while Plaintiff’s image contains no reflections. Further, Defendant’s photograph contains a larger foreground and places the ingredients closer to the packaging than Plaintiff’s photograph.

For some reason, the court grants leave to amend.

State barber board wins battle against "Barber Shop" bar

Really wanted a Sweeney Todd reference here but couldn't figure it out.

Osteria Segreto, LLC v. Hilgers, No. 8:26-cv-00065-BCB-MDN (D. Neb. Apr. 20, 2026)

Osteria Segreto, formerly “an Italian speakeasy” in a space that had once been a hair salon, restyled itself as “a barber shop themed bar” named “The Barber Shop Blackstone.” It was surprised to discover the Nebraska Barber Act, which among other things prohibits businesses from using the title of “barber” or “barber shop” or displaying a “barber pole” without a state-issued license to practice barbering. The court refused to enjoin enforcement of the law, finding that this was a regulation of deceptive commercial speech.

The Bar’s logo is a monochromatic barber pole with the name “The Barber Shop” and the tag line, “Where the Buzz is Real.” It’s accessed “through a back-alley door tucked between a wall and a wood fence that is adorned with a small [red, white, and blue] barber pole.”

entrance

logo

Patrons enter a small anteroom, where they “see a lone vintage barber chair, a barber pole, and small television that displays a history of barbering,” and “[a] bouncer greets customers, checks their IDs, and allows them through a hidden door into the bar.” According to the plaintiff, “[t]he walls are filled with historical pictures of barbers and barbering tools. The bar is dimly lit, but at the end of the narrow space is a small seating area next to a floor-to-ceiling light installation designed to mimic the banded lights of a barber pole.” The menu includes drinks called “the ‘Scotch and [Scissors],’ the ‘Classic Cut Old Fashioned,’ and the ‘Barber’s Flight.’”

grand opening ad showing entrance and promising guest barbers

more social media

The bar advertised for a grand opening that mentioned “5 cabinet giveways [sic], secret menu, drink specials, and special guest barbers!”

The Board claimed rights in a “mark” registered with the state in barber poles, defined as “spiral stripes, red, white, and blue or any combination of them.” A state AG pointed out in earlier correspondence:

While the barber pole which you seek to use for the collective mark has been associated with barbers since the Fifth Century, A.D., there still may be some problems with enforcement of the logo exclusively for licensed barbers in this State. When a word or symbol has been in the public domain for a period of time, it is no longer susceptible to exclusive appropriation.

But, the AG continued, maybe it could still serve as a collective mark. The Board doesn’t charge a licensing fee for use of the “mark,” but has issued express consent for approved barber schools to use its barber pole “registered service mark.”

A licensed barber in the State of Nebraska who worked in the Blackstone District (nearby) complained to the Board: “I’m not sure if they are going to be actually cutting hair but they mentioned guest barbers. The whole theme of this place is so disrespectful to the trade I wish people would stop making money off of it because it’s a cool idea.” Then the Board started going back and forth with the bar, claiming both “trademark” rights and exclusivity according to the Barber Act. The bar disavowed any intent to provide barber services, but wanted to use the name and barber pole.

First, the court declined to address any trademark claim by the Board for purposes of the motion. JDI didn’t hold, as the Board argued, that trademark law always “prevails” over the First Amendment, particularly “where, as here, a state actor attempts to regulate commercial speech by asserting a trademark.” Not only were there some pretty serious doubts over the validity of the putative “mark,” but “when the Supreme Court has addressed regulation of commercial speech by governmental entities, it has applied the intermediate scrutiny test from Central Hudson.” (As for those doubts—the Board registered a service mark, not a certification mark, and it never registered “barber shop” as any kind of mark. And there was a reasonable argument that any claim in “barber shop” or “barber pole” was invalid for genericity or descriptiveness.)

Fortunately for the Board, its regulation survived Central Hudson. The state regulated barbers for public health/safety reasons and required them to be licensed as barbers before offering barbering services or holding themselves out as barbers. The law specifically barred the “display [of] a barber pole or use [of] a barber pole or the image of a barber pole in … advertising” without a license.

If commercial speech is inherently misleading, it gets no First Amendment protection. That was likely the case here, the court found. At plaintiff’s bar, “patrons first encounter a fully equipped barber service station with a service mirror, tools, and capes used in barbering.” The name “The Barber Shop Blackstone” was inherently misleading, “carrying no indication that the business is a bar not a barbershop, and using a logo with a barber pole that is exclusively associated with barbering.” The slogan “Where the Buzz is Real” didn’t help; nor did the reference to “special guest barbers” in the grand opening advertisement.

Osteria Segreto relied on the (bad) decision in Express Oil Change, L.L.C. v. Mississippi Bd. of Licensure for Pro. Eng’rs & Surveyors, 916 F.3d 483 (5th Cir. 2019), in which the court ruled that automotive service centers operating under the name “Tire Engineers” couldn’t constitutionally be held liable under state law restricting the use of the term “engineer.” The Fifth Circuit found that, because “engineer” “can mean many things in different contexts,” it was not inherently misleading, despite the state’s survey finding a very high percentage of consumers were deceived.

Somewhat in contradiction to the idea of arbitrary trademarks, the court here ruled that “nothing suggests that ‘barber’ or ‘barber shop’ can mean many things in different contexts,” so the terms could only mean licensed professionals. (And Apple can only mean fruit?) State law defines “barber shop” “expressly—and narrowly”—as “an establishment or place of business properly licensed as required by the act where one or more persons properly licensed are engaged in the practice of barbering.” And the contextual factors here reinforced that, including the logo, so the name and logo “inevitably will be misleading” as to the services available to customers:

The Court would not hesitate to hold that calling a bar “The Hospital Blackstone,” “The Doctor’s Office Blackstone,” “The Law Office Blackstone,” or “The Department of Motor Vehicles Blackstone” would be inherently misleading.

The remaining context didn’t help, as noted above. “There is an inevitably misleading inference that ‘The Barber Shop Blackstone’ provides barbering services although it may also provide alcoholic beverages—even if there is no evidence that anyone was actually deceived about the services or goods provided. The parties do not dispute that there are barber shops that also have liquor licenses.”

Although technically Central Hudson analysis can simply end if the regulated commercial speech is inherently misleading, the court considered the other prongs. The only serious challenge was to the regulation’s tailoring. Central Hudson requires a restriction to “directly advance” a “substantial” governmental interest. “Restricting unlicensed entities from using ‘barber shop’ and a ‘barber pole’ in their advertising plainly provides effective support for and directly advances the government’s purposes of protecting both ‘the interest of public health, public safety, and the general welfare’ and ‘the skilled trade of barbering and the operation of barber shops [that are] affected with a public interest.’” Although the existence of less restrictive alternatives is relevant, intermediate scrutiny doesn’t require a perfect fit, and the fit here was reasonable.