Court Holds Spokeo Decision Doesn’t Preclude Standing in TCPA Class Action

Nghiem v. Dick’s Sporting Goods, Inc.

Factual Allegation:

  • Text Message sent without adequate consent


  • Plaintiff has no standing to bring claim under Supreme Court decision in Spokeo v. Robins because the plaintiff couldn’t identify any actual damages


  • Plaintiff has standing
  • TCPA violation entails inherent harms:
    • Annoyance, battery drain, time waste, and possible service charges

CA “Made in the USA” Lawsuit Dismissed Over Change to CA Law

Alaei v. Rockstar, Inc.

Factual Allegations:

  • In 2015, the plaintiff bought beverage with “Made in the USA” and U.S. image on can
  • Product contained ingredients made outside of the U.S.
  • Was illegal in CA to advertise “Made in the USA” if all ingredients were not of domestic origin
  • On 1/1/16, CA law changed to allow “Made in USA” if foreign-sourced ingredients comprise less than a certain percentage of the product’s total ingredients

Question: Which law applies to “Made in USA” claims?


  • New law applies. Even if the product was purchased prior to the law change, “Made in USA” is not necessarily illegal if the product doesn’t have 100% domestic ingredients

NAD Reviews Jelly Belly Sports Bean “Formulation” Claims

In re Jelly Belly Candy Co. (#6048)

Ad Claim #1:

  • “Sports Beans Energizing Jelly Beans are formulated to help fuel the body during intense exercise”


  • Claim supported
  • Advertiser pointed to various ingredients that were generally accepted by the scientific community as offering benefits to exercise capacity

Ad Claim #2:

  • “Scientifically Formulated to Maximize Sports Performance”


  • Claim not supported
  • Consumers would interpret this claim to mean that the amounts of the highlighted ingredients have been proven to provide optimal performance, i.e., a faster run and/or ride
  • Jelly Belly argued athletes would not interpret it in this manner

International Trade Court Sheds Light on “Made in the USA”

Energizer Battery v. United States


  • Energizer flashlight had 50 different parts
  • Bulk of the parts were made in China
  • Final assembly of the parts into product completed in USA


  • Did “substantial transformation of the components to the flashlight occur within the USA such that it can be labeled “Made in the USA” for country of origin (importation) labeling purposes?


  • No. Components were not “substantially transformed” in USA
  • Decision based upon the fact that name, character, and use of each part within the flashlight remained the same

Court Determines $4.3 Million is Proper Penalty for False Advertising by 5-Hour Energy

State of Washington v. Living Essentials LLC


  • WA court held that the following ad claims were not supported:
    • Doctors recommend the product; users would experience a “no crash” energy boost; and the combination of ingredients provides a benefit that is superior to just drinking coffee

Issue: How are penalties calculated for violation of false advertising law in WA?


  • Deceptive ads on consumable products present more of a risk to the public than deceptive ads for non-consumable products
  • $100 x number of airings/publications of ads containing false claims
  • $4.29 x number of packages sold containing false claims