In Bates v. Abbott Laboratories, the Second Circuit affirmed dismissal of a consumer class action challenging the labeling of Ensure shakes and drinks as materially misleading.  2025 WL 65668, at *1–2 (2d Cir. Jan. 10, 2025). 

The plaintiff claimed the labeling was misleading because it falsely portrayed Ensure drinks as “healthy and nutritious” despite containing “added sugar,” which the plaintiff alleged was “detrimental to consumers’ health.”  Id. at *2.  The plaintiff brought claims under New York General Business Law §§ 349 and 350, which prohibit “deceptive acts or practices” and “false advertising,” respectively.  Id. at *1.

The Second Circuit affirmed dismissal because the labeling on the product fully disclosed the drinks’ added sugar content, and defendants cannot be liable for an allegedly deceptive practice or false advertising that is “fully disclosed.”  Id. at *2.  The court explained that, because the sugar content was listed on the product labeling, “any misconception about the contents of the Ensure drinks based on” the claim that it was healthy and nutritious because it did not contain added sugar could “be resolved by a consumer who looks at the sugar content on the” label.  Id. at *3. 

This decision provides a meaningful look into how the Second Circuit evaluates deceptive practice and false advertising claims brought under New York General Business Law §§ 349 and 350 and outlines a path to defend against similar lawsuits. 

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a…

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a variety of advertising, consumer protection, privacy, and product defect and safety claims, with exposure ranging from millions to billions of dollars. Based on his “proven record,” Andrew has been recognized as an “attorney you want on your side in a bet-the-company case.”

Andrew’s clients include those in the consumer products, life sciences, financial services, technology, automotive, gaming, and media and communications industries. He has consistently helped his clients prevail in litigation in federal and state courts across the country against putative class representatives, government agencies, state attorneys general, and commercial entities.

With a long history of representing companies subject to extensive federal regulation and oversight, Andrew has a unique ability to help courts understand the complex environment that governs clients’ businesses. Clients turn to Andrew because of his successful outcomes at all stages of litigation, his responsiveness and attention to their matters and his deep understanding of their businesses.

Andrew’s recent successes include:

Leading the successful defense of several of the world’s leading companies and brands in class actions accusing them of engaging in deceptive marketing or selling defective products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
Defeating claims against one of the nation’s leading consumer products companies in industry-wide, multidistrict class-action litigation challenging the company’s marketing and advertising of over-the-counter medicine containing allegedly ineffective ingredients, which earned Andrew recognition by American Lawyer as a “Litigator of the Week.”
Delivered wins in multiple nationwide class actions on behalf of leading financial institutions related to fees, disclosures, and other banking practices, including defending several financial institutions accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recognition as a “Class Action Group of the Year.”
Represented several consumer product and life sciences companies from lawsuits seeking economic damages arising out of the sale of products that allegedly caused personal injuries.
Helping several of the world’s most prominent companies from ESG-related claims accusing them of misrepresenting their practices.

Andrew has also achieved favorable outcomes for clients in commercial and indemnification disputes involving contracts, fraud, and other business tort claims. He helps companies navigate contractual and indemnification disputes with their business partners. Additionally, he provides guidance on arbitration agreements and has helped numerous clients avoid multi-district and class-action litigation by enforcing their arbitration agreements.

As a recognized thought leader on issues impacting class action litigation, Andrew regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in an interview with Litigation Daily on class-action litigation issues. In recognition of his achievements, he has been recognized by The American Lawyer as a Lawyer of the Week, and the Daily Journal recently included him on their list of Leading Commercial Litigators (2025).

Watch: Andrew shares insights on class action litigation, as part of our Navigating Class Actions video series.

 

Photo of Celin Carlo-Gonzalez Celin Carlo-Gonzalez

Celin Carlo-Gonzalez is a litigator in the Firm’s New York office. Her practice focuses on complex commercial disputes, high-stakes insurance recovery litigation, and class actions. Celin represents clients across a wide range of industries, including global manufacturing and distribution, financial services, and technology.…

Celin Carlo-Gonzalez is a litigator in the Firm’s New York office. Her practice focuses on complex commercial disputes, high-stakes insurance recovery litigation, and class actions. Celin represents clients across a wide range of industries, including global manufacturing and distribution, financial services, and technology.

Celin maintains an active pro bono practice. Prior to joining the firm, Celin clerked for the Honorable Matthew W. Brann for the Middle District of Pennsylvania.