Hunton Retail Law Resource

This past week, the following consumer protection actions made headlines:

Litigation Halted:

Jury finds Pom Wonderful Failed to Prove Coke Misled Customers

A California federal jury found that Pom Wonderful failed to prove by a preponderance of the evidence its claims under the Lanham Act that Coca-Cola misled customers into thinking that Minute Maid’s “Enhanced Pomegranate Blueberry Flavored 100% Juice Blend” contained more than 50 percent of pomegranate and blueberry juice combined. Pom Wonderful had sought $77.5 million from Coca-Cola, claiming that the company had stolen its business by tricking consumers into buying its juice.

Trans Fat Class Action against Kroger Dismissed

A California federal judge dismissed a plaintiff’s claims that Kroger’s store-branded bread crumbs misleadingly stated that the product contains zero trans fats when, in fact, it contained trace amounts of trans fats. The judge found that the plaintiff could not establish that she relied upon the label when she claimed that she had been too busy to read it for 15 years. Similarly, the judge found that she lacked standing for failure to allege a cognizable injury.

Eleventh Circuit Reverses Lower Court’s Class Certification of Claims against Electrolux

A three-judge panel of the Eleventh Circuit reversed a Georgia district court judge’s class action certification, which claimed that Electrolux’s front-loading washing machines have a design flaw that allows the breeding of smelly mold. The appellate court found that there were not enough common issues throughout the proposed class members because the proposed classes could not assert the same misrepresentation claims against Electrolux.

Ninth Circuit Affirms Dismissal of Slack fill Claim

A three-judge Ninth Circuit panel affirmed a district court’s dismissal of claims that Fresh, Inc.’s Sugar Lip Balm violated California’s Fair Packaging and Labeling Act. The plaintiff alleged that the tube’s screw mechanism permitted only 75 percent of the total lip product to advance past the top of the tube, while a plastic stop device prevented the remaining 25 percent of the product from being accessible. The appellate court found that the portion of lip balm that does not protrude from its container when pushed to the top does not meet the definition of slack fill. The court also affirmed the district court’s dismissal of false advertising claims, finding that a reasonable consumer would understand the general mechanics of dispenser tubes and that some product may be left in the tube.

Ongoing Class Action Litigation:

Jessica Alba's The Honest Company Targeted for False Advertising

Plaintiffs filed a putative class action in California federal court against The Honest Co., Inc. when independent tests found the presence of sodium lauryl sulfate (“SLS”), a skin irritant. The company, which was founded by actress Jessica Alba, claims that its products are natural and free of harmful chemicals, and are “[h]onestly [f]ree of SLS.” The suit alleges that these claims are false and misleading under California law.

Guess Outlet Pricing Case to Proceed

Consolidated claims that Guess, Inc. used inflated reference pricing at its outlet stores to mislead California consumers into thinking they were getting a bargain on apparel survived a motion to dismiss. The practice requires that the retail price be genuine and has recently come under increased scrutiny.

NAD Decisions:

Reynolds to Change its “Heat and Eat” Claims after NAD Inquiry

Reynolds Consumer Products, LLC announced that it will discontinue certain claims about its “Heat and Eat” food storage containers. The announcement came after a challenge by S.C. Johnson before the National Advertising Division (“NAD”) for claims that Reynolds’ containers were a “safe alternative to plastic” and “ideal for the microwave.”

NAD Refers Claims about Eco Alkaline Batteries to FTC

The NAD referred claims against LEI Electronics, Inc.’s Eco Alkaline brand batteries regarding carbon neutrality to the FTC. The advertiser’s website states that “every purchase is carbon neutral [and] by purchasing Eco Alkaline batteries, you’re doing your part to reduce the CO2 and climate change impact brought about by the production, distribution, and disposal of alkaline batteries.” They also claimed that the product was a “100% carbon neutral alkaline battery.” The NAD referred the case to the FTC after LEI refused to remove the claims because it participates in a third-party carbon offsetting program.