9th Circuit orders class decertified: common issues on materiality/damages insufficient without deception

Rusoff v. Happy Group, Inc., --- F.4th ----, 2026 WL 2387098, No. 24-7706 (9th Cir. Aug. 17, 2026)

Court’s summary:

This is a deceptive advertising class action concerning “pasture raised” labels on egg cartons. After excluding the opinion of plaintiffs’ expert on egg industry standards, the district court found that plaintiffs’ inability to demonstrate consumer deception on a class-wide basis “precludes a finding of predominance” under Federal Rule of Civil Procedure 23(b)(3). The court nonetheless certified the classes based on assertedly common questions of materiality and damages. Because plaintiffs did not meet the requirements of Rule 23(b)(3), we reverse the grant of class certification.

USDA recognizes caged and cage free eggs; the latter has two subcategories, organic and free range. USDA considers “free range,” “pasture raised,” and certain similar terms to be synonymous. But there are a number of other standards from associations and retailers who operate voluntary certification programs, which egg producers pay to participate in. To these certifying organizations, “pasture raised” is the more stringent standard, so certified pasture-raised eggs tend to command a price premium in the market. But the certifiers’ standards differ, e.g., one requires at least 2 square feet of uncovered outdoor area per hen, while another requires about 22 square feet per hen available for potential use (though only about 5.5 square feet needs to be accessible to the hens at any one time if there’s rotation).

Happy Egg’s egg cartons advertise that its hens are “free range” and “pasture raised on over 8 acres.” Plaintiffs alleged that the more stringent “pasture raised” standards are the dominant industry standards, and that consumers paid a price premium for Happy Egg products based on the company’s implied compliance with these standards (even though Happy Egg did not identify either standard on its cartons).

Plaintiffs’ expert opined that “the prevailing consumer expectation is that an egg producer making a free-range or pasture-raised claim is adhering to the commonly accepted standards pertaining to such claims as set by the AHA or HFAC.” The lead plaintiffs testified that they didn’t know about the standards’ content. The court found that one expert didn’t have a methodology for examining different egg products in Seattle, rather than California or New York (where the class members resided).

There was also a consumer survey expert. The survey results found that using both the “pasture raised” and “free range” labels led consumers to conclude that the eggs were both pasture-raised and free-range, whereas with only a “free range” label, they concluded that the eggs were free-range, but not pasture-raised. The survey did not address whether a reasonable consumer understood “pasture raised” as aligned with either allegedly dominant standards. For materiality, survey respondents were 8.1 times more likely to state a preference for the eggs that included the “pasture raised on over 8 acres” representation.

Thus, plaintiffs’ theory of deception required both experts: the first to show that “pasture raised” had a commonly understood meaning tied to the dominant standards, while the survey would show that a reasonable consumer would understand Happy Egg’s “pasture raised on over 8 acres” claim to mean that its eggs were pasture-raised.

But the district court excluded the first expert, whose methods for assessing what a reasonable consumer would understand—such as photographing egg cartons in stores near his home for his own “personal purposes”—were unreliable, as they “[did] not pass the standards that he would expect of his own survey consultant.” Then, the survey lacked a key foundation piece, and couldn’t prove predominance.

But the district court still certified the class under Rule 23(b)(3) after finding that materiality and damages were common questions that predominated.

The district court correctly excluded the first expert’s opinions as unreliable because they didn’t come from “a rigorous evaluation of how a reasonable consumer understands the term ‘pasture raised.’” As a result, “on the foundational issue of deception, plaintiffs failed to make the required showing.” It wasn’t enough to show that certain industry standards are dominant without connecting that to consumer beliefs.

Plaintiffs responded that deception is governed by an objective “reasonable consumer” standard, which means that all claims by any plaintiff will necessarily rise and fall together. “But in order to reach the reasonable consumer analysis, a plaintiff must first show, on a classwide basis, what deceptive marketing or false advertising a reasonable consumer could have been misled by.” Thus, “[w]here the theory of deception is tied to an industry standard, evidence must be brought forward showing that there is a commonly understood industry standard, and that a reasonable consumer would associate a given representation with that standard.”

Then, the district court erred by not weighing the common issues against the individualized issues and determining whether the common issues are, on balance, important enough to justify class-wide treatment despite the existence of individualized issues. Deception is a central element of the claims. “[O]n this record, the lack of a classwide showing on deception cannot be overcome by supposedly common issues of materiality and damages that are unmoored from any classwide showing of actionable wrongdoing.”

heavy weather for heavy metals in infant food

Choudhry v. Mead Johnson & Co., 2026 WL 2349932, No. 25-cv-09480 (ER) (S.D.N.Y. Aug. 13, 2026)

Plaintiffs alleged that various Enfamil infant formulas contained arsenic, cadmium, and lead, heavy metals that present significant health risks, particularly to young children, and “can cause serious and often irreversible damage to brain development,” including from “low levels of exposure.” They sued for false advertising under NY law.

They allegedly relied on the following claims on the packaging: “ ‘Brain Building,’ ‘#1 Recommended Brand by Pediatricians,’ ‘The Only Hypoallergic [sic] Formula With LGG® Probiotic,’ ‘No Artificial Growth Hormones,’ ‘LGG® probiotic to help support digestive health’ and ‘does not use table sugar,’ ” along with “expert recommended,” and some others. They alleged that reasonable consumers would not think these products contained heavy metals.

A consumer survey conducted by their counsel found that 77.8% of survey participants answered “No” when asked, “After seeing the label would you expect arsenic, cadmium, lead, and/or mercury in the infant formula?” The survey followed up:, “how important, if at all, would it be to your purchasing decision if the infant formula you purchased contained, or risked containing, even a small amount of arsenic, cadmium, lead, and/or mercury,” and 71.0% of participants answered “Very important,” 25.4% “Important,” and 3.6% “Not at all important.” Mead Johnson received judicial notice for the fact that, “[i]n April 2026, the FDA released a report finding low levels of Heavy Metals in many infant formulas, cautioned that this was not automatically reason for alarm, and that additional guidance is forthcoming, but did not provide a timeline for that guidance.”

The court declined to apply the primary jurisdiction doctrine. White v. Beech-Nut Nutrition Co., 2024 WL 194699 (2d Cir. Jan. 18, 2024) vacated the district court’s dismissal of a similar case based on the primary jurisdiction doctrine; detailed consideration wasn’t required because “the FDA had no expected timeline to provide actionable guidance on the safe levels of Heavy Metals in infant formulas, which outweighed ‘any advantages of deferring to the FDA under the primary jurisdiction doctrine.’” That was still true.

Also, courts are well-suited to determine if a product’s packaging was misleading or deceptive. This case didn’t require the court to determine what levels of heavy metals should be permissible, so there is not “a substantial danger of inconsistent rulings.”

Standing for unpurchased products: although the ingredients weren’t identical, the same alleged misrepresentation was on all of them, which was enough at this stage.  

GBL §§ 349 and 350: Not subject to 9(b) pleading requirements. Mead Johnson questioned plaintiffs’ reliance, but they alleged that they “read and relied upon the packaging of the Infant Formulas when making their purchasing decisions,” which sufficed.

Material misleadingness to “a significant portion of the general consuming public or of targeted customers, acting reasonably in the circumstances”: Courts will not permit such claims “where the plaintiffs’ alleged inference appeared fundamentally incompatible with basic common sense.” Plaintiffs didn’t allege that the formulas advertised that they didn’t have heavy metals, “but that the packaging misleadingly represented the products as healthy, safe, and nutritious when they contained or risked containing Heavy Metals,” with claims like “Brain Building,” “expert recommended,” and “#1 Recommended Brand by Pediatricians.” The court agreed that the survey bolstered this inference.

Interesting comment:  

Plaintiffs’ pleading satisfies this low burden because it demonstrates that the majority of consumers would assume the product did not contain Heavy Metals based on its label. This does not definitively establish that a reasonable consumer would be misled by the packaging. However, at this stage, despite certainly requiring an inferential leap, Plaintiffs sufficiently allege that this supposed deception is not “patently implausible” such that the Court can determine as a matter of law that reasonable consumers could not be misled by the packaging. (emphasis added)

Is the court saying that a majority of consumers could still be unreasonable? Empirical v. normative claims about reasonable consumers are scattered throughout cases, with courts rarely articulating the relationship between “reasonable” and “common.”

Anyway, implicit misrepresentation was plausible. What about an omission theory?  Mead Johnson argued that plaintiffs failed to allege that knowledge about heavy metals was solely in its possession and that consumers could not obtain the information, and also that heavy metals in food is widely known.

At the motion to dismiss stage, “a plaintiff bringing an omission-based claim for § 349 liability must show that ‘the business alone possesses material information that is relevant to the consumer and fail[ed] to provide this information,’ or that plaintiffs could not ‘reasonably have obtained the relevant information they now claim the [defendant] failed to provide.’ ” This was sufficiently alleged. Plaintiffs alleged Mead Johnson’s superior knowledge; that consumers reasonably expected Mead Johnson to test for heavy metals and disclose that information to the public; that Mead Johnson deceptively hid that it failed to monitor for the presence of heavy metals in its products; and that consumers could not detect their presence without conducting scientific tests.

Materiality to a reasonable consumer: not a separate element, but it would be reasonable to assume that heavy metals’ presence would be material because of their health risks.

For common law fraudulent misrepresentation, Mead Johnson argued that its efforts as part of a trade organization to lobby against a California bill that would require disclosure of heavy metals content was insufficient to plead scienter because it is “legitimate First Amendment activity,” not “conscious misbehavior.” That alone wasn’t sufficient to establish the required “strong circumstantial evidence” of scienter, but it could bolster the claims.

However, unjust enrichment was dismissed as duplicative.

consumers face more skepticism than competitor in online gaming case

Mitchell v. Skillz Platform Inc., 2026 WL 2212876, No. 26-cv-00674-AMO (N.D. Cal. Jul. 31, 2026)

Although competitors can aggregate harm to sue under the Lanham Act, consumers—the direct victims of false advertising—tend to have more trouble. Skillz just lost a big claim to its main competitor over falsely advertising that it didn’t use bots in mobile cash games. Here, with similar allegations under various state laws, the consumers struck out. Plaintiffs didn’t sufficiently allege reliance, causation, or lack of an adequate remedy at law (for the restitution claim).

Representations that users match with “real players” and have “no bots guaranteed” were plausibly false and deceptive, as were representations that users match with “players of equal skill.” But the representation that users can make “easy withdrawals” was non-actionable puffery with no set meaning.

The claims failed because plaintiffs didn’t allege that they relied on or even read any particular representation. “Most of the representations are allegedly located across Skillz’s website and social media accounts, so it is not reasonable to infer that Plaintiffs must have seen them.” Even an in-app badge displayed “in front of every single player, every time they launch a Skillz-powered application” since at least the beginning of 2024 wasn’t enough to plead that they actually read the alleged misrepresentations. Seems pretty fixable, but language quoted rejecting the RICO claim was bad news (and maybe another reason to avoid RICO claims): “[A]s the Ninth Circuit noted in a similar case, ‘there may be no single, logical explanation for gambling—it may be an addiction, a form of escape, a casual endeavor, a hobby, a risk-taking money venture, or scores of other things.’ As a result, it may well be that the representations ‘did nothing to influence [users’] perceptions’ or that users ‘played fully aware of how the [platform] operate[s].’” While the evidence in the competitor case tends to negate that idea, “users had to launch a Skillz application before seeing the in-app badge, so they might have already decided to play before seeing the representations at issue here.”

FDCA mostly preempts claims against ineffective decongestant

Yousefzadeh v. Johnson & Johnson Consumer Inc., --- F.4th ----, 2026 WL 2192415, Nos. 24-3296 (L), 25-119 (CON) (2d Cir. Jul. 30, 2026)

Oral phenylephrine (oral PE), used in popular products as Nyquil Severe Cold & Flu, Advil Sinus Congestion & Pain, and Mucinex Sinus Max, was long considered an effective nasal decongestant. In 1994, the FDA published a final monograph determining that oral PE was generally recognized as safe and effective as a nasal decongestant.

Starting in 2007, however, scientific studies began casting doubt on that finding. Indeed, in 2016, some studies concluded that oral PE “[was] no more effective than [a] placebo” as a decongestant. Yet, the FDA has continued to require manufacturers to adhere to its existing labeling requirements denoting oral PE as effective.

In September 2023, the FDA convened an expert panel that concluded, by a unanimous vote of 16-0, that oral PE products were ineffective as nasal decongestants, and in 2024 it proposed an administrative order to remove oral PE from the nasal decongestant monograph. Until the administrative order becomes final, however, the FDA stated that, “[f]or now, companies may continue to market OTC monograph drug products containing [oral PE] as a nasal decongestant.”

What does this mean for this consumer protection lawsuit alleging that, in the past decade, drug manufacturers have sold some $12 billion’s worth of ineffective nasal decongestants? This consolidated complaint alleged NY GBL and common-law claims as well as RICO claims (which will not be further discussed because they are RICO claims).

The district court found FDCA preemption and also rejected a Lanham Act claim in a related case. The court of appeals found that the FDCA expressly preempted the majority of the consumer plaintiffs’ state law claims. “Defendant Manufacturers followed the FDA’s prescribed labeling requirements by designating their decongestants’ purpose as decongestion. Defendant Manufacturers cannot now be sued for complying with those FDA specifications.” Loper Bright didn’t change things because it didn’t “subvert agencies’ authority to promulgate preemptive regulations pursuant to the authority vested in them by statute -- authority the FDCA vests in the FDA here. Indeed, the Supreme Court has given preemptive effect to federal regulations since before Chevron.”

The discussion is extensive, but a couple of points: There was no duty to update the labeling merely because the ingredient didn’t work; “a monograph drug could be considered misbranded if it has a dangerous effect on the user, even when the drug’s label conforms to the monograph requirements, thus allowing a manufacturer to add a safety disclaimer to the product’s label.” But it’s not automatically misbranded if it is simply “ineffective when used as recommended or suggested in the label.” Thus, the FDA had declined to impose additional labeling requirements for ineffectiveness as opposed to safety risks. “Because monograph drug manufacturers cannot utilize [a specifically provided-for] process to unilaterally change their labels’ efficacy information, … their obligation is to conform to the applicable monograph, not to update their labels to reflect new scientific evidence.” To require additional disclosures would be to impose a requirement other than that imposed by the FDCA, and “any such compulsory language would not be permissible if it was inconsistent with the statements required by the FDA.”

What about failure to disclose in marketing and advertising, as distinct from labeling? The statute’s express preemption “voids state law marketing and advertising claims, not only labeling claims,” by specifying that its preemptive effect extends to “any requirement relating to public information or any other form of public communication relating to a warning of any kind for a drug.” Allowing failure-to-disclose claims would create an end run around federal labeling rules.

Not preempted: Allegations that using “Maximum Strength” or “Max Strength” on certain products constituted a false statement that the products work better than other oral nasal decongestants, such as pseudoephedrine. No FDCA provision or regulation addresses phrases such as “Maximum Strength” or claims of comparative strength. “Defendant Manufacturers therefore voluntarily and on their own accord placed these Maximum Strength statements on their products; they were not obligated to do so. Consequently, these additional statements are subject to the misbranding provision’s requirements and cannot be rescued by the monograph or approved NDAs.”

In addition, manufacturers who obtained FDA approval through the NDA (new drug application) process could have an independent duty to update their drugs’ labels through the prescribed process to reflect newly acquired information bearing on a drug’s efficacy. While that process is unavailable for monograph drugs, it is available for brand-name NDA drugs, so the court remanded for consideration of this theory as well.

What about the related Lanham Act claim, not brought by consumer plaintiffs?  The district court didn’t abuse its discretion in dismissing the claim because the competitor-plaintiff neglected many opportunities to preserve or raise the claim. Given the fact that there’s no preemption of federal claims, this seems like a serious error on its part.

interactive website offering illegal-in-CT ghost guns wasn't covered by CUTPA, but any sales were

Connecticut v. Indie Guns LLC, NO. (X06) UWY-CV23-6072307S, 2026 WL 2322641 (Ct. Super. Ct. Aug. 6, 2026)

The state sued Indie Guns for selling illegal ghost guns into Connecticut. Indie Guns defaulted, but the court only granted partial default judgment—merely having an interactive website doesn’t make the company subject to the Connecticut Unfair Trade Practices Act (CUTPA), although selling illegal products into the state is deceptive and unfair in violation of the law.

“[A]n out-of-state or foreign company that operates an interactive internet website is not, on that basis alone, engaged in trade or commerce in Connecticut.” And CUTPA requires such in-state trade or commerce, so this isn’t about personal jurisdiction but the scope of the law.

The state argued that the website was deceptive and unfair because it advertised its products to all consumers without warning of their illegality, and offered to sell to Connecticut consumers.

A violation of a Connecticut criminal statute such as the ban on ghost guns does constitute a CUTPA violation via unfairness. Unfairness requires considering: “(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons].” “Inarguably, selling and delivering illegal gun parts in Connecticut readily satisfies all three criteria.”

So too with deception, which requires (1) a representation, omission, or other practice likely to mislead consumers; (2) interpreted reasonably under the circumstances; that is (3) material. “When a defendant sells a product to a buyer, the defendant represents, expressly or implicitly, that the product is legal in the state in which the buyer purchases or receives delivery of the product.” (Given that this was a test buy, there was no actual deception, but the state as enforcer isn’t required to show that.)

But there liability ended. CUTPA  defines “trade” and “commerce” as “the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state.” (Emphasis added.). Actual sales/shipment to Connecticut definitely constitute engaging in trade or commerce, but not “the mere existence of an interactive website.” Although this does require the AG to wait until illegal products are shipped to Connecticut, so it creates some risk, that’s a policy decision for the General Assembly to make. (The court also commented that reaching Connecticut via distributors or other independent contractors would support application of CUTPA to a manufacturer.)

In part because of the default, we don’t actually know how many times Indie Guns sold into Connecticut. “Those practical challenges are likely why the state focuses on the Indie Guns’ website, rather than on gun sales, as the basis for imposing civil penalties. Those practical challenges, however, do not permit the court to speculate about the extent of Indie Guns’ sale of illegal gun parts to Connecticut consumers. Nor do those challenges permit the court to ignore the geographic scope limits of CUTPA.”

The state was entitled to judgment that Indie Guns acted willfully when it sold a ghost gun part to the investigator. But the state didn’t seek the $5000 maximum penalty for that sale. It was entitled to a permanent injunction against sales into Connecticut.

Foiled: Reynolds must face "Made in USA" class

Washington v. Reynolds Consumer Products LLC, No. 1:24-cv-02327-ALC-RFT, 2026 WL 2210008 (S.D.N.Y. Jul. 30, 2026)

The court certified a class of NY consumers under the NYGBL’s false advertising provisions, based on alleged falsity of aluminum foil that’s sold with a label claiming, “FOIL MADE IN U.S.A.”

Plaintiffs argued that reasonable consumers expect that the raw materials used in the products are sourced from within the United States and that a substantial amount of the transformation of raw materials into the foil takes place within the United States. But the only commercial source of aluminum is bauxite. “Since 1981, none of the bauxite mined in the U.S. was used for aluminum, and in 2013, U.S.-mined bauxite comprised less than 0.1 percent of world production.” Thus, plaintiffs alleged, Reynolds must be sourcing from outside the US.

To make aluminum foil, bauxite is processed and refined into alumina, which is then turned into aluminum through smelting. The resulting ingots undergo further processing to make aluminum foil. Plaintiffs alleged that a substantial portion of this processing occurs outside of the United States.

Reynolds’ (bad) argument was that the “Made in the U.S.A.” label referred only to the final foil itself, not to the ingots (as if people knew about the processing stages of aluminum foil).

Only discussing parts of the certification standard: Reynolds argued that plaintiffs lacked proof of a classwide definition of “made in USA,” common evidence of consumer exposure to the label, and common evidence of a price premium. But they had enough for certification on commonality and predominance.

The Third Circuit still stands alone in its extreme ascertainability rulings. The proposed class was comprised of all persons who purchased Reynolds Wrap aluminum foil labeled with the words “FOIL MADE IN U.S.A.” in New York from March 27, 2021, to the present, which was ascertainable “because the putative class has been concretely identified by subject matter, timing, and location.”

Plaintiffs had a common theory of deception. “Defendants focus much of their analysis on whether or not Plaintiffs can prove materiality and injury, rather than show whether these questions are common because they may be determined on a classwide basis.” All class members would have been exposed to the “FOIL MADE IN U.S.A.” label on the front of all aluminum foil products. Common evidence was required to determine materiality to a reasonable consumer.

And price premium injury was common injury; they proposed a damages model consistent with their theory of liability. Plus, given that statutory damages would be less than $50 or $500 here, most class members would opt for statutory damages over actual damages. “Statutory damages can be assessed on the basis of common proof,” creating a perfectly viable common damages model even without the proposed conjoint analysis.

Beats plausibly deceived consumers with Android feature claims

Saucedo v. Beats Electronics, LLC, 2026 WL 2210908, No. 26-cv-01363-RFL (N.D. Cal. Jul. 31, 2026)

Saucedo’s California claims against Beats partially survived for alleged misrepresentations about the Android compatibility of its headphones. The Amazon product page allegedly said, “Whether you’re on iOS or Android, you can enjoy the same seamless compatibility.” The accompanying footnote did not distinguish between features, saying only: “Requires an iCloud account and a compatible Apple device running the latest operating system software or a compatible Android device running the latest operating system software with Google Play Services enabled.” The Amazon page also claimed “Personalized Spatial Audio with dynamic head tracking” as a feature of the headphones, without any qualifier about its availability on Android within the graphic or nearby it.

 

“A reasonable consumer could plausibly read these representations and be deceived into thinking Android users would be able to use the Personalized Spatial Audio feature.”  Even if she should have looked beyond these, deception was still plausible. Though a separate graphic about “Apple and Android Compatibility” listed specific features that users could “[e]njoy,” it was plausible that users would not understand that as an exclusive list of cross-platform features. And one of the Frequently Asked Questions addresses the Personalized Spatial Audio feature, but does not disclose that the feature is unavailable on Android devices. It states:

Do my headphones have Spatial Audio?

Beats Solo 4 has personalized Spatial Audio with dynamic head tracking and uses built-in gyroscopes and accelerometers to surround you with sound as you move, creating a truly immersive listening experience on Apple platforms. You can customize your Spatial Audio in your iOS settings by going to Settings > Personalized Spatial Audio and following the on-screen instructions.

An “almost entirely illegible” disclaimer (which isn’t super clear) didn’t help: “Compatible hardware and software required .... iPhone with TrueDepth camera required to create a personal profile for Spatial Audio, which will sync across Apple devices ....”

"disclaimer"

Plaintiff was granted leave to amend to add allegations that she might repurchase the headphones because she might “reasonably, but incorrectly, assume the product was improved.” “It seems possible that Saucedo could plausibly allege that given the rapid pace at which technology develops,” so the request for injunctive relief was dismissed with leave to amend.

 

Chobani's "zero sugar" yogurt with allulose violates FDA regs despite FDA's nonenforcement; 7th Circuit reverses preemption ruling

Franco v. Chobani, LLC, No. 25-2087 (7th Cir. Jul. 27, 2026)

Federal law requires that foods advertised as sugar free contain less than a half gram of sugar. Chobani sold Chobani Zero Sugar Yogurt, but it included four grams per serving of allulose, a naturally occurring sweetener. If allulose is a sugar under federal law, Franco’s state law false advertising claims could proceed, but if it wasn’t, then there was express preemption because federal law doesn’t allow states to impose additional requirements on food labeling regulated by the FDCA. The district court, deferring to FDA enforcement guidance, found preemption. The court of appeals reversed, finding allulose to be a sugar under the regulation.

The relevant regulation defines “[t]otal sugars” as “the sum of all free mono- and di-saccharides (such as glucose, fructose, lactose, and sucrose).” And a food may not be labeled “sugar free” or “zero sugar” (or similar terms) unless it “contains less than 0.5 g of sugars, as defined by [the previous regulation]” and meets other requirements.

Hello, Loper Bright! “Interpreting the law is a job for the court,” though the court isn’t required to ignore the FDA’s perspective about the meaning of its regulations, and deference to agency interpretation of an ambiguous rule “can be appropriate.” The FDA has several times expressed a view: in 2016, it observed that “the final rule does not reach a decision as to whether Allulose should be excluded from the [definition] of sugar[] … , and Allulose, as a mono-saccharide, must be included in the [Total Sugars] declaration … pending any future rulemaking that would otherwise exclude this substance from the declaration.” In 2020, it issued industry guidance advising “manufacturers of [FDA’s] intent to exercise enforcement discretion for the exclusion of allulose from the amount of ‘Total Sugars’ and ‘Added Sugars’ declared on the label … pending review of the issues in a rulemaking.” (The issue appears to be that the FDA traditionally used chemical structure to identify sugars, but novel sugars might also count depending on factors such as an association with dental caries and how they are metabolized in the body.)

No further rulemaking has occurred, but the court of appeals called for the views of the FDA. In its resulting amicus brief, the agency took the position that total sugars as defined in that regulation include all monosaccharides, including allulose. The “such as” parenthetical at the end of the regulation was “merely a list of non-exhaustive, illustrative examples, and not (as the district court found) a limitation on sugars based on the physiological characteristics that the listed sub-stances shared.” And an enforcement position isn’t an interpretation of a regulation. The court of appeals found this persuasive. “There’s no dispute that allulose is a monosaccharide. Because the definition includes every monosaccharide and the following parenthetical is merely a list of examples, allulose is a sugar.”

The surplusage and noscitur a sociis canons didn’t change anything. Chobani argued that a “sugar” needed the same nutritional characteristics as glucose, fructose, lactose, and sucrose. The surplusage canon suggested that the “such as” parenthetical should have some meaning, but redundancy is common in the law, and “such as” doesn’t always mean “of the same kind”;  it can merely introduce “examples of a class.” “The FDA defined a class by way of chemistry; it reinforced that definition through examples, all of which share the same chemical structure.” There’s no need to derive a definition from the list of examples, since they merely illustrate the definition that already appears. Nor did Chobani argue that a definition of sugars that includes all monosaccharides will lead to absurd results. “And in defining total sugars, the FDA specifically invoked the language of chemistry, which means decisions favoring common parlance meanings aren’t persuasive, either.” The FDA could have defined total sugars based on physiological factors, rather than chemical makeup, but it didn’t do so.

The regulation wasn’t ambiguous, so there was no reason to defer to the FDA’s enforcement guidance, which wasn’t an official position anyway.

What about the marketing permit Chobani secured from the FDA? “[T]he fact that one sovereign (the United States) indicated that it would not enforce its labeling requirements with respect to allulose should not have led Chobani to believe that the states would take a similar approach. Similarly, … the agency’s marketing permit said nothing about state law consumer protection suits. Chobani is a sophisticated actor and should have been aware that the FDA’s decisions about its enforcement priorities would not immunize the company from suits based on state law.”

Chobani’s additional preemption theory based on Monsanto Co. v. Durnell, 609 U.S. ---, 2026 WL 1825691 (June 25, 2026), could be handled on remand by the district court.

Deception was also plausible. Chobani argued that consumers don’t care about the existence of monosaccharides in their food but are instead concerned with avoiding the ad-verse health consequences associated with traditional sugars. “Whether reasonable consumers care about the existence of allulose in their yogurt isn’t the same thing as asking whether reasonable consumers would be deceived by it.” Discovery was the right next step.

safety claims aren't vague in context of child car seats

Ricardo Moncada v. Nuna Baby Essentials, Inc., --- F.Supp.3d ----, 2026 WL 866852, No. 25-cv-2592 (PKC) (S.D.N.Y. Mar. 30, 2026)

Nuna allegedly marketed its Rava-brand children’s car-seat product by emphasizing its safety features and a product-testing regimen that exceeded American standards. But then Nuna announced that the Rava’s adjustable harness had a design defect that increased the risk of child injury. Its voluntary recall required consumers to cure the defect using a self-repair kit that was allegedly both difficult to follow and results in a car seat that does not function as originally promised. Ricardo Moncada sued under sections 349 and 350 of the New York General Business Law, alleging a price premium theory. An affirmative falsity claim survived, though not an omission claim, and the implied warranty of merchantability claim failed because the plaintiff didn’t provide Nuna with pre-suit notice of her claim, which New York law requires as a condition precedent.

Nuna advertised the Rava as a “[f]an favorite for security, longevity and sleek design,” featuring a “[q]uick-release” harness that “makes it easy to fasten [children] in.” It advertised that the product was “extensively tested” using “advanced” methods that went “above and beyond what’s required” through testing at “accredited, independent labs.” Nuna repeatedly touted that the Rava’s “advanced safety technology” exceeded “American safety standards.” Rava car seats sell for $450 to $550, allegedly a “premium price.”  

But the Rava’s harness-adjustment cover allegedly proved to be vulnerable to debris like crumbs and dust, which prevents the harness from clamping properly and causes the harness to loosen. NHTSA received 129 complaints about the Rava, 125 of which cited loose harnessing. Nuna thus recalled more than 600,000 Rava car seats, though it did not actually recall the entire product but instead sent affected consumers a “seat pad, head support cover and cleaning kit.” This allegedly put the onus on consumers to disassemble and reassemble “a dangerous and defective product” by using a purportedly flawed “Remedy Kit.”

Nuna argued that plaintiffs didn’t have standing because of the voluntary recall and remedy kit. “But plaintiffs have made non-conclusory factual allegations about the claimed inadequacy of the recall, and it is well established that a plaintiff has a concrete injury if she overpaid for a product that did not perform as promised.”

Plus, violations of GBL §§ 349 and 350 were plausibly not puffery. While a reasonable consumer would understand labels like “premium,” “timeless” and “expertly engineered” to be statements of opinion, Nuna’s descriptions of its compliance with safety standards and rigorous testing requirements could be factual. Nuna claimed that the Rava “exceeds American safety standards,” and that “[o]ur baby gear is extensively tested before it leaves the factory. We use advanced equipment and testing methods, going above and beyond what’s required. To ensure compliance with safety standards, we regularly have our gear tested at accredited, independent labs.”

Nuna argued that these claims lacked specifics. But its cited case was Lee v. Mikimoto (Am.) Co., 2023 WL 2711825, at *5 (S.D.N.Y. Mar. 30, 2023), where a pearl seller claimed to “only use the finest pearls that meet the strictest standards....” and other sellers advertised complying with American Gemological Society standards. This was a different context: “it is plausible that a reasonable consumer encountering Nuna’s statements would understand the company to be asserting that the Rava was subject to thorough and vigorous testing that exceeded safety standards required by law. That Nuna’s marketing statements did not cite a governing statute or regulation does not make it less plausible that a consumer would understand Nuna to be making a verifiable statement of fact about the Rava’s safety compliance and product-testing regimen.”

However, an omission-based claim that Nuna was liable for knowing about but failing to disclose “grave risks” about the Rava failed. The complaint alleged Nuna’s knowledge of consumer complaints filed with NHTSA and posted on Reddit. Section 349 allows for omission-based liability where “the business alone possesses material information that is relevant to the consumer and fails to provide this information” and considers “whether plaintiffs possessed or could reasonably have obtained the relevant information they now claim the [defendant] failed to provide.” Reddit’s message boards and NHTSA consumer complaints are available to the public. The complaint didn’t allege any information about problems with the Rava harness known to Nuna alone, so the omission wasn’t plausibly deceptive.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

front and bottom of box

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Good thing statutory damages are available!

Igloo must face biodegradability/recycled content/made in USA consumer claims

Lieber v. Igloo Products Corp., --- F.Supp.3d ----, 2026 WL 266301, No. 25-CV-488 (ARR) (LKE) (E.D.N.Y. Feb. 2, 2026)

I’ll get to the Igloo 9^th Circuit case eventually. This case is a putative consumer class action against Igloo, alleging that its claims that its coolers are “biodegradable,” made of “recycled content,” and “Made in the USA” are false and misleading under NY law.  

First: Plaintiffs alleged that “biodegradable” would lead reasonable consumers to believe that the product would completely degrade within a reasonable period of time after customary disposal, but instead it typically ends up in landfills after it is thrown out. The FTC’s Green Guides say:

It is deceptive to make an unqualified degradable claim for items entering the solid waste stream if the items do not completely decompose within one year after customary disposal. Unqualified degradable claims for items that are customarily disposed in landfills, incinerators, and recycling facilities are deceptive because these locations do not present conditions in which complete decomposition will occur within one year.

NY law provides a “complete defense” to liability under its false advertising provisions if the defendant’s “act or practice is ... subject to and complies with the rules and regulations of, and the statutes administered by, the federal trade commission or any other official department, division, commission or agency of the United States.” “A court may evaluate a challenged representation’s compliance with the FTC’s Green Guides to determine whether or not there is a complete defense to a claim under N.Y. G.B.L. §§ 349 and 350.”

Igloo argued that the claims should be dismissed because the Green Guides don’t create a private right of action, but of course plaintiffs were suing under NY law, not the Green Guides.

Igloo also argued that “the term ‘biodegradable’ does not mean ‘will biodegrade’ or ‘destined for inevitable biodegradation,’ ” and plaintiffs didn’t allege that the ReCool Product was inherently incapable of biodegrading or that consumers knew about the Green Guides.

The court found deception plausible. It was plausible that the products didn’t comply with the Green Guides; the complaint alleged that the products were customarily disposed of in landfills, and lacked the necessary qualifications for a biodegradability claim.

Second, Igloo made “recycled” claims about some products, but plaintiffs alleged that only some parts were made from recycled plastic, but not, e.g., foam insulation and interior linings, and cited the Green Guides again:

Marketers can make unqualified claims of recycled content if the entire product or package, excluding minor, incidental components, is made from recycled material. For items that are partially made of recycled material, the marketer should clearly and prominently qualify the claim to avoid deception about the amount or percentage, by weight, of recycled content.

This too was plausible at this stage. “While defendant cites numerous decisions where courts declined to read ‘exclusively’ into an advertising claim—such as whether the phrase ‘real cocoa’ on a product’s packaging implied that a product is made exclusively of real cocoa—it fails to consider that purchasing decisions are made within a specific context.”

Third, Igloo allegedly made Made in USA representations even though not all or virtually all aspects of the relevant products, including the raw materials, components, and manufacturing processes, originated from and occured within the United States. Plaintiffs alleged that specific materials were likely made outside the US, and full components such as hinges, handles, drain plugs, bottle openers, spigots, washers, and wheels were allegedly imported from manufacturers outside of the United States. The FTC defines “Made in the United States” and its synonyms to mean “any unqualified representation[ ], express or implied, that a product, and by extension, the raw materials used in its manufacture, are of U.S. origin.” Thus, federal regulations consider it a deceptive practice to label a product as “Made in the United States” or with substantially similar representations unless (1) the final assembly or processing of the product occurs in the United States, (2) all significant processing that goes in the product occurs in the United States, and (3) all or virtually all ingredients or components of the product are made and sourced in the United States.

Even though plaintiffs only alleged that certain materials were “likely” from outside the US, it was plausible that the claims were deceptive.

Breach of express warranty claims failed for want of sufficient pre-suit notice, and unjust enrichment claims were dismissed as duplicative.

competitor lacks standing under Cal. law because it didn't rely on alleged misrepresentations; its customers did

Kachuck Enters. v. Mission Produce, Inc., --- F.Supp.3d ----, 2026 WL 216475, No. 2:25-cv-01523-AH-JCx (C.D. Cal. Jan. 22, 2026)

This was a putative class action about alleged misrepresentations made by distributors and suppliers of Mexican-grown avocados that their avocados are sustainably and responsibly sourced. Plaintiffs, California avocado farmers, alleged losses from defendants’ touting of “unsustainably grown Mexican avocados as ‘sustainable’ to consumers.”

Despite representations about water conservation, biodiversity, and soil health, defendants allegedly source their avocados from Mexican orchards installed on lands recently deforested without the proper permits from Mexican authorities. “Sourcing avocados from deforested land exacerbates ongoing water scarcity in Mexico, contributes to climate change, and leads to habitat and biodiversity loss.” Plaintiffs cited various surveys showing that “significant segments” of U.S. consumers prioritize sustainability and more transparency from food producers and retailers throughout the entire food supply chain. Another survey “found that more than half ... of consumers indicated they are willing to spend more money on products that are deemed sustainable or environmentally friendly.”

Plaintiffs brought the usual California statutory claims. The court found no standing under the FAL and the “fraudulent” prong of the UCL because plaintiffs didn’t allege their own reliance on the false claims; rather, they alleged that they were harmed by consumers’ reliance on the allegedly false claims. This reasoning seems dumb—these laws were intended to protect competitors as well as consumers—and the court noted an increasing minority of federal district courts have rejected it. It’s probably time for the 9^th Circuit to certify a question, though I don’t have much doubt that the California Supreme Court will clarify that consumer reliance is required, but not competitor reliance.

As for unfair competition/UCL unfairness, the court applied the “tethering” test, which applies in actions “by a competitor alleging anticompetitive practices.” A finding of unfairness must be “tethered to some legislatively declared policy or proof of some actual or threatened impact on competition”: “conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws ..., or otherwise significantly threatens or harms competition.”

The test was not satisfied. Although plaintiffs argued in briefing that “Defendants’ influx of cheaply priced and unsustainably—and possibly illegally—sourced avocados distorts the market,” while plaintiffs must comply with strict sustainability requirements, while the complaint focused only on defendants’ acts of “offering for sale and selling deceptively labeled Mexican avocados” and “deceptively marketing products.”

Regardless, that theory wasn’t enough. Plaintiffs argued that defendants’ sourcing practices are exploitative because they are “possible only by entities with sufficient size and power to dominate operations in foreign countries with weaker environmental regulations” and they “exploit residents of a foreign country and contribute to the wholesale destruction of forests.” Thus, “Defendants leverage their size and reach to flood the market with avocados, boxing out competitors.” But these were “conclusory assertions,” and didn’t explain what part of antitrust law was implicated.  Nothing in the FTC Act specifically “precludes a business from sourcing its products in a lower-cost country where environmental laws or other safeguards may be less stringent than in the United States,” and sourcing products abroad is not an FTC Act violation “simply because regulatory conditions in those countries make the cost of production lower.” Plus, injury to competitors isn’t injury to competition. [That argument rings particularly hollow where the alleged distortions operate on whole countries’ worth of businesses.]

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.”