On February 11, 2019, Leonard Gordon, Tyler Hale, and Elliot Kelly published "A Lack of Specificity in Calif. 'Asterisk' Labeling Claims" in Law360. Here is an excerpt:
Every brand that has designed a product label has felt the call of the asterisk. Visual real estate on packaging and in advertisements is limited, and marketing departments often groan at the piles of clumsy language that legal departments insist make it onto the page.
But the elegant solution — dropping an asterisk and including the disclaimers, clarifications or required disclosures in tiny print at the bottom — has traditionally drawn the ire of regulators or private plaintiffs who complain that such disclosures are ineffective because nobody actually reads them.
Now, a line of California federal court cases has begun taking the plaintiffs’ argument at their word, and not in a way that class plaintiffs like: by using Federal Rule of Civil Procedure 9(b) to dismiss complaints that don’t specifically allege whether or not a consumer followed an asterisk and weighed the information in the disclaimer.