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.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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