Interactive Counsel

Arent Fox's interactive media law blog - latest news and trends in advertising, data security & privacy, and IP.

Interactive Counsel

Blog Posts by Karen Ellis Carr

Health Privacy & Security, Advertising
False Ad Plaintiffs Out of Joint and Out of Luck in Fourth Circuit

The Fourth Circuit has recently made it more difficult for false advertising plaintiffs to survive a motion to dismiss where their claims are based on an allegation of “literal falsity.” In the suit, plaintiffs, purchasers of certain joint health supplements, alleged that GNC and Rite Aid engaged in false advertising and violated various state consumer protection laws, deceptive advertising, and express warranty statutes in marketing joint health supplements containing glucosamine and chondroitin. Specifically, plaintiffs alleged that the joint health representations on defendants’ product packaging were false because the “vast weight” of scientific evidence has shown that those ingredients are not more effective than placebos at treating osteoarthritis. 

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‘To Pomegranate or Not to Pomegranate…’

In an 8-0 decision, the US Supreme Court ruled last week that a private party may bring a Lanham Act claim challenging a food label regulated by the Federal Food Drug and Cosmetic Act (FDCA). The case originated when POM Wonderful LLC (POM), the makers of POM pomegranate juice drink, sued Coca-Cola Company in 2008, alleging that Coca-Cola had misleadingly labeled as “pomegranate-blueberry blended juice” a product that is more than 99 percent apple and grape juice, violating the Lanham Act. Justice Anthony Kennedy, writing for the Court, ruled that FDCA regulation did not preclude a Lanham Act claim and that Congress’ intention was for both statutes to co-exist: “Congress did not intend the FDCA to preclude Lanham Act suits like POM’s.” Slip. Op. 17

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