Ben & Jerry’s Happy Cows, Oreo Real Cocoa & moreJanuary 12, 2021
While 2020 was an eventful year in the world of advertising law, it feels wrong to begin any type of “year in review” without acknowledging the global events of this year, and the challenges they have brought to every individual in one way or another. In our role, we are often in a position of criticizing or defending from criticism the marketers who create the content at the center of our work. But, right now, we would like to take a moment to celebrate and congratulate them for a year spent capturing the tone of the times with sensitivity, insight, and just the right amount of humor, including the challenges of working from home, our newfound sense of responsibility in not going anywhere, the importance of uplifting and supporting each other, and the fact that we can’t wait to end our relationship with 2020. And, amidst all the challenges, we would like to remind everyone that 2020 also brought us Some Good News.
We look forward to a better 2021, and to seeing those of our readers who are old friends in person again and meeting others for the first time. In the meantime, let’s talk about this year’s key developments in advertising law…
The appellate courts didn’t skip a beat this year, issuing several important decisions in the world of class actions:
In California, we saw several unsuccessful attempts to rescue otherwise deficient pleadings by adding allegations related to consumer surveys that purported to show consumers were misled by a defendant’s advertising. Time and time again, in dismissing claims related to Mott’s applesauce, Ghirardelli baking chips, and Westbrae soymilk, the Northern District of California reaffirmed that consumer surveys alone do not make plausible an allegation that reasonable consumers are misled where the complaint has not otherwise plausibly alleged deception.
Every year brings its own set of new and ever more creative theories of false advertising. This year was no different, with decisions that resolved a plethora of interesting (albeit unsuccessful) allegations of deception:
In a case against SeaWorld, the Northern District of California found the (human) plaintiffs failed to demonstrate standing to defend the rights of orca whales via false advertising claims.
The District of Vermont dismissed false advertising claims from a consumer disappointed that Ben & Jerry’s ice cream is allegedly not, in fact, made exclusively from milk sourced from “happy cows” and “Caring Dairy” farms.
The Southern District of New York reminded us that claims that a seller’s products are “premium” or “the best” are mere puffery, and certainly cannot be used as a backdoor to complain about Starbucks’s alleged use of pesticides.
While condemning the exploitation of children in the cocoa bean supply chain, the First Circuit affirmed a…