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

  1. A false statement of fact in a commercial advertisement about its own or another’s product;
  2. The statement actually deceived or has a tendency to deceive a substantial segment of the audience;
  3. The deception is material;
  4. Defendant caused its false statement to enter interstate commerce; and
  5. Plaintiff has been or will likely be injured as a result

Two ways to prove a statement is FALSE

  1. Literally False; or
  2. 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)


  • 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 Trade Commission
  • National Advertising Division of the Better Business Bureau
  • Other Federal Regulatory Agencies (i.e., FDA, SEC, DOT)