Court Holds "False by Necessary Implication" Claim Not Available to Plaintiff

Playtex and Eveready Battery v. Munchkin


  • Defendant made packaging claims about the thickness of its product as compared to the plaintiff
  • Claims were "false by necessary implication" such that they unambiguously communicated superior thickness
  • As such, no consumer survey evidence necessary


  • Chart containing claims was capable of multiple interpretations
    • Thicker, stronger, and better at containing odors
  • As such, it was not "false by necessary implication," and survey evidence was necessary to show falsity

CA Court Denies Class Certification in False Advertising/Labeling Case Because Plaintiff Couldn’t Provide Damage Theory

Alex Khasin v. R.C. Bigelow, Inc.

Facts: Front of the Green Tea Products' packaging bears the statement, "Healthy Antioxidants," and the back panel includes the statement, "Mother Nature gave us a wonderful gift when she packed powerful antioxidants into green tea".

Allegations: Packaging had unlawful nutrient content claims since products failed to meet the minimum nutritional requirements legally required


  • Plaintiff couldn't provide a valid damages model
  • Proper measure of restitution in a product mislabeling case is "not the full purchase price or all profits"
  • Must present a damages model that can likely determine the price premium attributable only to use of the allegedly misleading claim

Court Holds Beer Co. Has No Obligation to Correct Misimpression of Consumers

Dumas v. Diageo Plc


  • Red Stripe beer, originally brewed in Jamaica, but now brewed in USA
  • Package states "Jamaican style lager" and "Taste of Jamaica"

Allegations: Consumers mistakenly believe they are purchasing Jamaican beer, imported from Jamaica, brewed using Jamaican ingredients


  • The very fact that the word "style" is used indicates that the product is not from Jamaica
  • The Taste of Jamaica" is a vague and meaningless phrase
  • On the edge of the label are the words "Brewed & Bottled by Red Stripe Beer Company Latrobe, PA" which, although is small, is legible

A Few Nuggets From Proposed New SAG Commercials Contract

(Contract not yet ratified, these are just my impressions, and this isn’t everything!)


Social Media Waiver:  Usage costs only 15% of a session fee for commercials produced for use on social. 30 day use cycle

Testimonial Wavier:

  • Free use of real people providing actual testimonials—describing prior experience with productlservice (not describing on-camera "trial")
  • Have to be users of the product
  • "Casting notice' must as for "non-professionals"
  • Person can't have appeared in a commercial, TV, or movie previously
  • Have to apply for the waiver

Live Event Man on Street Hidden Camera Waivers: Still in effect

Tags: Ability to use multiple tags on one commercial limited only to two weeks use, but spots can run in the same market at the same time

Producers Lending status But Not Actually Producing: SAG may revoke status cif those not bona fide producer

P&H: Increased to 18%—effective April 1

7th Circuit Holds Website Terms Not Binding and Found “Scroll Box” Unnecessary

Sgouros v. TransUnion Corp.


  • Website terms had "I Accept & Continue" button above "scroll box" of service agreement
  • Above button aby clicking you agree for company to obtain your credit profile"
  • It did not say "by clicking you agree to service agreement"


  • Because language above I Agree" did not speak to agreement to service terms, but language about agreement to something else, service terms weren't binding
  • No court has held that "scrollable window containing buried terms creates a binding contract"