When making an advertisement, what is okay?
- Identifying a competitor’s product in the advertisement to make a true comparison
- Making a true statement about your product or a competitor’s product that is based on reliable scientific evidence that reasonably supports the claim
- Exaggerated Boasts or Puffery: general, vague or clearly subjective claims of superiority understood as opinions rather than factual representations
- Example of puffery - “WE ARE THE BEST!”
Elements of False Advertising - 43(a) of the Lanham Act
- A false statement of fact in a commercial advertisement about its own or another’s product;
- The statement actually deceived or has a tendency to deceive a substantial segment of the audience;
- The deception is material;
- Defendant caused its false statement to enter interstate commerce; and
- Plaintiff has been or will likely be injured as a result
Two ways to prove a statement is FALSE
- Literally False; or
- Literally true but tends to mislead, confuse or deceive the consuming public
How can my advertisement tend to mislead, confuse or deceive the consuming public?
- Identify every direct and implied claim made by the advertisement
- How would consumers perceive the advertising message?
- Does the statement appear to be based on testing (“30% almonds”)?
- Do we have sufficient testing evidence to back up these claims?
- Should you include qualifiers as to how the testing was done?
- If the statement does not appear to be based on testing, does it misdescribe some absolute characteristic of the product (i.e., “fresh orange juice”)?
How can someone attack my testing?
- Your test is not sufficiently reliable
- Your test does not support the claim or implication made
- Your test contradicts another test, whether done by someone else or the attacker
If I comply with the FDCA (Food, Drug and Cosmetic Act), will I avoid a False Labeling Claim?
No. See POM Wonderful LLC v. The Coca-Cola Company (U.S. June 12, 2014)
Venues
- District Court
- Federal false advertising claims and state law claims (trademark infringement, unfair competition and dilution)
- Also may consider state trade libel claims, but in California, requires the false claim to be an intentional disparagement or done with reckless disregard
- Federal false advertising claims and state law claims (trademark infringement, unfair competition and dilution)
- Federal Trade Commission
- National Advertising Division of the Better Business Bureau
- Other Federal Regulatory Agencies (i.e., FDA, SEC, DOT)