"up to" absorbency claims for period underwear were plausibly misleading

Gamino v. Thinx Inc., No. EDCV 23-2067 JGB (SHKx), 2024 WL 2429307 (C.D. Cal. Apr. 18, 2024)

Gamino brought a host of California statutory and common law claims against Thinx, alleging that Thinx’s period underwear didn’t function as advertised; specifically, that it was incapable of holding the amount of liquid advertised. The court declined to dismiss the complaint on a variety of grounds.  

Thinx argued that the absorbency of its products is advertised as performing “up to” a certain threshold, and that reasonable consumers therefore expect that the products’ performance could be less than the maximum. In addition, it argued that no reasonable consumer would read the phrase “prevents leaks” as guaranteeing the products will “absorb whatever amount of fluid is dispensed into them.”

The court disagreed:

The basis of Plaintiff’s claims is not that Defendant’s products occasionally perform below the maximum absorbency advertised, but that the products “do not hold” and “cannot absorb” the “claimed amounts of fluid, and instead leak.” … Plaintiff alleges that Defendant represents its products’ absorbency using specific fluid amounts on its website, product pages, and packaging. … Plaintiff also alleges that testing reveals representative Thinx products cannot absorb the amount advertised on Thinx’s packaging and website, but that each of the products leaks. …  Finally, Plaintiff alleges that other consumers of Thinx products have experienced leakage “with even the smallest amount[t] of blood” or “in less than 15 minutes.” … Based on Plaintiff’s allegations, a reasonable consumer could be misled into believing Defendant’s products can fulfill their advertised, maximum absorbency.

The court quoted prior caselaw: “[M]ultiple courts have found that ‘up to’ representations may materially mislead reasonable consumers.” The allegation that Thinx’s products lacked the capacity to absorb the advertised amounts, plus the lack of allegations that Thinx listed customer-specific factors which could reduce performance (beyond the broad statement that “individual results may vary”), meant that “up to” was no help.

Thinx also argued that Gamino did not suffer an economic injury because she could have received a refund for her purchase. That conflated injury with remedy—despite available refunds, she suffered an economic injury “as soon as she relie[d] on a defendant’s deceptive advertising and part[ed] with more money than she otherwise would have paid.”

Also, Gamino plausibly alleged lack of absorption with allegations of (1) her own experience, (2) the experiences of other consumers, and (3) testing “by using cough syrup to mimic the viscosity of menstrual flow, just as some manufacturers do to test pads and tampons.” At this stage, she didn’t need to allege “which products were tested, who did the testing, whether Thinx uses the same method to test its products,” or “how much the products absorbed when she wore them.”

Gamino also had standing to seek equitable remedies because she plausibly pled that she was still interested in period underwear and wanted to purchase it if she could rely on the advertising. “While the Court likely cannot order Defendant to manufacture a wholly new product ... it surely can issue some form of injunctive relief that would redress Plaintiff’s injury.”

Finally, the court declined to wait for the FDA under the primary jurisdiction doctrine. Among other things, “there is no concrete evidence that the FDA is currently involved in creating a new regulation about how to test the absorbency of period underwear.” Courts “have generally declined to dismiss the complaint on primary jurisdiction absent concrete evidence that the FDA is currently involved in creating a new regulation concerning the subject of the lawsuit.”

BIPLA (Boston Intellectual Property Law Association) Writing Competition call for papers

1st Prize:$1,000 2nd Prize:$500 

BIPLA is once again holding its annual Writing Competition. Law school students are encouraged to submit papers relating to topics involving intellectual property law. Judges will consider the merits of each paper based on: (i) contribution to knowledge respecting intellectual property law; and (ii) the extent to which it displays original and creative thought or information not previously published or available. The requirements for eligibility are outlined below. 

 Content Rules

 1. Articles must be written solely by a student or students either in full-time or part-time attendance at a law school (day or evening) within the jurisdiction of the First Federal Judiciary Circuit or prepared in connection with a course at a law school in the First Circuit. 

 2. Articles must be written or published between September 1, 2023 and August 31, 2024.

 3. Articles must be submitted to the Boston Intellectual Property Law Association on or before September 30, 2024. 

 4. Papers should be no more than the equivalent of ten (10) law review pages including footnotes (30-40 pages typed copy). 

 5. Submission of the paper as a .pdf file is required. Submissions must include the submitter’s name, current address, current telephone number, law school, and employment information (if applicable). Please send all article submissions to: Kevin MacDonald, PhD Shareholder Wolf, Greenfield & Sacks, P.C. Kevin.MacDonald@wolfgreenfield.com Office: 617.646.8497

Reminder on Call for Papers: Trademark and Unfair Competition Scholarship Roundtable 2024

 The Trademark and Unfair Competition Scholarship Roundtable co-hosted by Harvard, NYU, and the University of Pennsylvania will take place this year at Harvard. The Roundtable is designed to be a forum for the discussion of current trademark, false advertising, 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 entire hour for discussion and assigned a commentator.   

The Roundtable will be held on Friday, October 18, 2024. If there is a critical mass of papers, we may also extend the Roundtable through Saturday morning, October 19. Participation at the Roundtable will be limited and invitation-only and we expect all participants to have read the papers in advance. The Roundtable will cover the travel and lodging expenses for invited authors. 

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 18. Submissions must be of full drafts in Microsoft word format. The deadline for submission is May 15, 2024, and decisions on participation will be made shortly thereafter, ideally, by June 1st.   

To submit a draft paper, please fill out the form here (https://forms.gle/QAfdmH18KmgdZAxp7) and upload an anonymized version of your draft.  Please note that the maximum file size that may be uploaded is 10MB. Appendices or other supporting material can be uploaded separately; please do not submit a CV or cover letter. 

For further information about the Roundtable, please email: Barton Beebe (NYU): barton.beebe@nyu.edu; Jennifer Rothman (Penn): rothmj@law.upenn.edu, or Rebecca Tushnet (Harvard): rtushnet@law.harvard.edu.

court remands NYC's false advertising case against oil companies to state court

City of New York v. Exxon Mobil Corp., 2024 WL 2091994, No. 21-CV-4807 (VEC) (S.D.N.Y. May 8, 2024)

Being a multitrillion-dollar corporation means you can survive a “ridiculous” argument or two. Here, the city successfully wins remand (and a fee award) in this opinion rejecting removal of its false advertising suit against Exxon, other fossil fuel companies, and their top trade association for violations of New York City’s Consumer Protection Law. Following a similar case, Connecticut v. Exxon Mobil Corp., 83 F.4th 122 (2d Cir. 2023), the court understandably refuses to distinguish it.

The complaint alleged that defendants “misled consumers about the impact of their products on the climate and falsely represented themselves as corporate leaders in the fight against climate change.”

Defendants removed, alleging (eventually) six bases for federal jurisdiction: (1) the City’s claims arise under federal common law because they implicate transboundary pollution and foreign affairs; (2) the action falls under the federal officer removal statute, 28 U.S.C. § 1442(a)(1); (3) Defendants’ production and sale of fossil fuels occur on “federal enclaves;” (4) the Court has diversity jurisdiction over the action under the fraudulent joinder doctrine; (5) the action is removable under the Class Action Fairness Act; and (6) the City’s claims include federal constitutional elements.

The federal removal statute allows a defendant to remove to federal court “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” “[O]ut of respect for the limited jurisdiction of the federal courts and the rights of states,” federal courts must “resolv[e] any doubts against removability.” The “well-pleaded complaint rule” provides that federal question jurisdiction “exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” However, a plaintiff cannot defeat federal question jurisdiction by pleading its complaint as if it “arises under state law where the plaintiff’s suit is, in essence, based on federal law.” Nonetheless, federal question jurisdiction cannot be created “on the basis of a federal defense, ... even if the defense is anticipated in the plaintiff’s complaint, and even if both parties concede that the federal defense is the only question truly at issue.” There are only three circumstances in which a complaint that does not allege a federal claim may nevertheless “arise under” federal law for purposes of removal: “(1) if Congress expressly provides, by statute, for removal of state-law claims; (2) if the state-law claims are completely preempted by federal law; and (3) in certain cases if the vindication of a state-law right necessarily turns on a question of federal law.”

Federal common law that completely preempts state claims based on transboundary pollution and foreign affairs: That’s not a thing. False advertising claims “do not become claims about transboundary pollution and foreign affairs just because the alleged deception relates to the impact of fossil fuels on the climate.” Plus, “there is no indication that Congress expressly authorized or intended to completely preempt state laws that have a glancing relationship to transboundary pollution or foreign affairs,” and the constitutional structure doesn’t do that all on its own. “Even if federal common law could, in the abstract, have complete preemptive effect, it would not preempt Plaintiff’s claims, which are garden-variety false advertising claims…. There is simply no conflict between the State’s interest in ensuring its consumers are not misled by false advertising and any federal interest in regulating environmental pollution.” So too with foreign affairs: “[T]his Court cannot imagine any state of affairs under which [foreign affairs] would be affected by an order enjoining Defendants from disseminating misleading ads in New York City.”

Federal officer removal: The federal officer removal statute permits removal of a state court civil action “that is against or directed to ... any officer (or any person acting under that officer) of the United States or of any agency thereof ... for or relating to any act under color of such office.” For non-federal officers to invoke this statute, they “must (1) show that [they are] a person within the meaning of the statute who acted under a federal officer, (2) show that [they] performed the actions for which [they are] being sued under color of federal office, and (3) raise a colorable federal defense.” They did not.

Federal enclave jurisdiction: This is the “silliest” of defendants’ argument. Section 8 of Article I of the U.S. Constitution authorizes Congress “[t]o exercise exclusive Legislation in all Cases whatsoever ... over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” Defendants’ theory, “contrary to fact,” was that the complaint targets their extraction, production, and sale of fossil fuels, including “operations that occur on military bases and other federal enclaves.” Also, the advertising the City alleged is false reaches federal enclaves, i.e., “API’s Super Bowl ads reach federal enclaves, such as Ellis Island and Fort Tilden.” This is silly because (1) the complaint doesn’t target extraction, production, and sale of fossil fuels, and (2) the “advertising reaches federal enclaves” argument is “ridiculous” and would federalize “all consumer protection laws that relate to advertisements (and probably everything else); it is self-evident that all advertisements on the internet, television, radio and in newspapers can be viewed or heard by persons who happen to be in a federal enclave.”

Diversity jurisdiction: Defendants argued that the only non-diverse party, ExxonMobil, was fraudulently joined. Not so.

CAFA: This was “[s]econd in absurdity.” The City was suing under its parens patriae power, not as a class action. As the court pointed out, the City can sue without proof that consumers have actually been injured, “a far cry from the basic requirement in Rule 23 that a class representative have a representative injury.”

First Amendment: Federal jurisdiction where a complaint doesn’t state a federal claim exists if a federal issue is: “(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance.” For a federal issue to be “necessarily raised,” the “mere presence of a federal issue in a state cause of action” is inadequate; the question of federal law must be “a necessary element of one of the well-pleaded state claims.” The false advertising claim would “necessarily raise” a federal issue only if it was “affirmatively ‘premised’ on a violation of federal law.” But they didn’t: the false advertising claim requires that defendants (1) engaged in “deceptive or unconscionable trade practice[s]” and (2) those practices involved “consumer goods or services.”

Still, defendants argued that their speech was on a matter of public concern, so the court couldn’t resolve the misrepresentation claims without addressing whether the First Amendment protected the advertising. That argument confused a defense (the statements were truthful protected speech) with an element of the city’s claim. “If the law were as Defendants urge, every libel, slander, and false advertising claim in the country” would be removable.

Fee-shifting in unsuccessful removals is up to the district court’s discretion, but should deter “removals sought for the purpose of prolonging litigation and imposing costs on the opposing party.” Here, the Second Circuit rejected three of the (initially) seven grounds for removal defendants argued, plus three that weren’t before the Second Circuit, but had been “roundly rejected by countless courts throughout the country.”

Even if removal was in good faith before the Second Circuit’s ruling, the renewed motion to remand was briefed afterwards, and it made multiple already-rejected arguments. The court found it appropriate to award costs and fees “in connection with arguments that it was not reasonable for Defendants to press when the City renewed its motion for remand: arguments that had largely been decided by the Circuit in Connecticut – federal common law, federal officer removal, and First Amendment defenses, and those that were objectively absurd – federal enclaves and CAFA.” Only the diversity jurisdiction argument was not unreasonable.

reasonable consumers of ovulation test kits understand details of hormone signalling

La Rosa v. Abbott Laboratories, No. 22-CV-5435 (RER) (JRC), 2024 WL 2022297 (E.D.N.Y. May 7, 2024)

Plaintiffs alleged that defendants’ at-home ovulation test kits were deceptive because they advertised “ovulation test kits” alongside the front-of-package statement “99% ACCURATE,” which conveyed that that the tests are 99% accurate at testing for ovulation, when in fact, the products detect a surge in luteinizing hormone (LH), and not actual ovulation. “All the kits state in small writing on the side or back of the packaging that they are 99% accurate at detecting LH levels.” Some kits include an asterisk next to the claim “99% ACCURATE”;  others include statements on the front of the packaging that they detect “LH Surge” or “No LH Surge.”

As alleged, the kits detect a rise in urinary LH levels, which typically precedes ovulation by twenty-four to thirty-six hours. But LH surges may occur at other times in a person’s menstrual cycle; body mass index, age, contraceptive use, sports activity, and smoking may affect urinary LH levels; when a person has an irregular cycle, the test could inaccurately indicate that no ovulation occurred; and more than ten percent of menstrual cycles are subject to a condition known as “Luteinized Unruptured Follicle Syndrome,” during which there is a normal LH surge and menstruation, but no egg releases. LH surges may also be detected in women who are infertile. The only current method for predicting ovulation with “a high degree of accuracy” is an invasive transvaginal ultrasound.

The court found that plaintiffs failed to state a claim under NY and California consumer protection law. Courts sometimes demand a lot of “reasonable” consumers—here, the court reasoned that reasonable consumers know the scientific details of fertility and should know the difference between LH surges and ovulation, especially given the package disclosures:

First, a key contextual inference arises from the products themselves: it is impossible to test for actual ovulation. A reasonable consumer does not expect to purchase a product that is impossible to find in the marketplace. … The FDA explains that at-home ovulation urine tests measure LH to detect ovulation and are successful at doing so “reliably about 9 times out of 10[.]” This explains that tests that reveal actual ovulation do not exist. Although a reasonable consumer is not expected to have medical expertise, in the context of a niche, specialty product, purchasers exhibit a higher degree of care. And indeed, Defendants’ products are a specialty item targeted to a class of informed consumers to aid in their attempts to become pregnant. Many buyers of ovulation test kits have had trouble getting pregnant in the past, and as such, seek help from various sources. According to Plaintiffs, “[a]s of 2015, an estimated 7.3 million women had received some sort of infertility service[.]” In turn, many ovulation test kit consumers would be expected to have at least some information leading up to their purchase, and therefore know what to expect to find in the marketplace—they do not expect to find at-home test kits that indicate actual ovulation.

This does not seem to me—as someone who has indeed been in the general market for this type of product—to be a description of reasonable consumers of specialized medical services, who tend to outsource a lot of the details to presumed experts.

In addition, the court reasoned,

a reasonable purchaser of Defendants’ products necessarily looks to the side and back of the box to understand how to use the products. Alongside these directions, the boxes for all the products in question clarify that the products test for LH, not for ovulation itself, and that an LH surge typically precedes ovulation. By contrast, a consumer of something such as a basic food item is not expected to flip over the packaging to look for clarification or disclaimers.

Read together, “Ovulation Test Kit” and “99% Accurate” could imply 99% accuracy at testing for ovulation, but the two phrases could also be read separately. And, true, some products include phrases on the front like, “Predicts Your 2 Most Fertile Days” and “Early ovulation test ... tells you the best 2 days to conceive.” Nonetheless, “regardless of where the front package falls on the spectrum, the product requires a standard of care that necessitates looking at the complete package.” And it wasn’t alleged that the tests didn’t reliably predict ovulation, even if not at the 99% accuracy level. Thus, “the clarifying language on the side or back of the packaging dispels any confusion.”

online ingredients list can't avoid deception claim, at least where survey suggests deception

Duncan v. Kahala Franchising, L.L.C., --- F.Supp.3d ----, CV 22-7841 (GRB)(AYS), 2024 WL 1936053 (E.D.N.Y. May 2, 2024)

Lots of ice cream jokes/quotes in here, but the basic question is: “should consumers ordering pistachio ice cream at one of [Cold Stone Creamery’s] establishments expect that that product will contain actual pistachios?” Because it doesn’t, the consumer protection claim survives.

To bolster the plausibility of her claims, plaintiff alleged that industry practice was to the contrary: Häagen-Dazs Pistachio Ice Cream and Ben and Jerry’s Pistachio Ice Cream both include actual pistachios, as does Thrifty brand ice cream, disparagingly described as “a less premium brand than Cold Stone Creamery.” And Cold Stone Creamery’s “strawberry ice cream contains strawberry, banana ice cream contains banana, and its chocolate hazelnut ice cream contains chocolate and hazelnut.”  Duncan also surveyed more than 400 U.S. consumers, each of whom had purchased ice cream within the preceding three months. Respondents asked “When viewing the image above, what ingredients do you believe would be included in the Pistachio ice cream? Select all that apply.” There was a list of ten potential ingredients, including pistachio and flavor agents, as well as the option “none of the above.” About 85% of the respondents believed that pistachio would be included; likewise, 88.6% of respondents expected that the Mint ice cream contains “mint.” (Plaintiff also challenged the absence of mango, coconut, mint and orange in those respective flavors, and the absence of butter in butter pecan, but there was no survey on anything but pistachio and mint.)

Given that the “vanilla” cases often dismiss claims at the pleading stage, should the court do so here? The court identified relevant factors in previous cases:

[T]he presence or absence of express representations regarding the ingredients used, such as “made with”; the availability of an ingredients list to the purchasing consumer; whether the flavor designation employed finds use as both a noun and an adjective; and the availability and significance of consumer survey evidence.

In addition, the court considered “allegations concerning competitor products giving rise to an inference about consumer expectations.”

There was no express “made with pistachio” representation here, but that wasn’t dispositive. Context includes the ingredients list and the visual appearance of the product. The fact that the ingredient list was available online was not helpful to defendant. While back-of-package ingredients lists can clarify any ambiguity, the analogy to online ingredients lists “fail[ed] spectacularly.”

Courts have rejected defense arguments based on ingredients lists that are difficult for a consumer to access. [Citing cases rejecting reliance on small-print or hard-to-find disclosures.] These typographic barriers pale in comparison to the physical segregation presented in this case: defendant is not attempting to rely on an ingredients list on the package or in small print on a sign, which might require a consumer to inspect a side panel or reach for a pair of reading glasses. Rather, examining defendant’s ingredients list requires access to an Internet-capable device and conducting a web search to locate it. If “a reasonable consumer should not be expected to consult the Nutrition Facts panel on the side of the box to correct misleading information set forth in large bold type on the front of the box,” it seems inconceivable that such a consumer should have to search online to find the relevant web page while waiting in line to order a scoop of ice cream.

 

In addition, requiring consumers to check online “also seems antithetical to the experience offered by defendant to the public, as described on another section of its website:… We like to think we’re really in the business of making people happy ... It’s all about what we call the 10-Minute Vacation® ... that 10-minute getaway you deserve from the world outside our doors. Just head inside any Cold Stone Creamery, and that’s what you’ll get.” That was inconsistent with a duty to locate, read, and analyze online ingredient statements.

Defendant also argued that the visual appearance of the ice cream—smooth and without apparent chunks of pistachio—avoided any deception, but that wasn’t apparent from the face of the complaint.

Adjectival use as a flavor name favored the defendant, but that too wasn’t enough for pistachio; it was weightier for mint, because “as an ingredient descriptor, it is highly unspecific [as to spearmint, peppermint, etc.], whereas it commonly finds use as a flavor descriptor without any reasonable expectation that the leaves of a particular mint plant will be involved.”

Use of actual pistachios in competitive products favored the plaintiff, again only as to pistachio.

The survey was the most helpful. “Defendant attempts to quarrel with the survey methodology, an effort which proves both unpersuasive and misplaced at this juncture, as the open-ended questioning here stands in stark contrast to leading questions asked in other cases.” The nearly 90% results were also significant, though not as persuasive for mint.

While 88% of the respondents indicated that they expected to find “mint” among the included ingredients, it is impossible to say what this means. Did they believe that the ice cream contained mint leaves or the extract of a mint plant? As “mint” encompasses an entire family of plants as well as common candies that bear the flavor of mint, this result proves far less compelling. Perhaps, after all, some respondents expected to find “chunks of red and green mint candy,” the advertised feature of Hershey’s Premium Peppermint Stick ice cream ….

Thus, the false advertising consumer protection claim was plausible as to pistachio, not as to the other flavors. It’s always so interesting seeing what generalizations about consumer beliefs courts are willing to make. I guess they have to re-run the survey with each flavor, and also with a list of mint plants? Would “mint from a mint plant such as spearmint or peppermint” be an acceptable category?