Using The Funnel—Folgers' Decision Key To Avoiding Certified False-Advertising Classes

Key Takeaways:

• The Eighth Circuit clarified that even when a state's false-advertising law does not require reliance, plaintiffs must still prove causation—and individualized consumer experiences can prevent claims from proceeding on a classwide basis.
• The decision reinforces the "advertising causation funnel," which recognizes that a consumer must see, perceive, understand and act on a challenged claim before any alleged harm can occur.
• Companies can use the funnel proactively by developing evidence about real consumer behavior early in litigation. Showing variation across these stages provides a strong basis to oppose class certification, even under state laws that omit reliance.