The Second Circuit Court of Appeals has determined that “to the extent a speaker or author draws conclusions from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement, those statements are not grounds for a claim of false advertising under the Lanham Act.” ONY, Inc. v. Cornerstone Therapeutics, Inc., No. 12-2414 (2d Cir., decided June 26, 2013). So ruling, the court upheld a lower court’s dismissal of false advertising and tortious interference with prospective economic advantage claims filed against a competitor by a company that makes surfactants for use in treating prematurely born infants with inadequate surfactant levels in their lungs.
The competitor had hired a company and several physicians to compile a database and present at medical conferences findings on “a study of the relative effectiveness of the different surfactants.” The focus of the study was on mortality rate and length of hospital stay. The physicians subsequently published some of the findings in a peer-reviewed journal, and the competitor touted its conclusions and distributed promotional materials citing its findings.
Noting that statements of pure opinion are protected under the First Amendment, the Second Circuit discusses the difficulty of analyzing scientific findings for purposes of a false advertising complaint under the Lanham Act. According to the court, “the very premise of the scientific enterprise [is] that it engages with empirically verifiable facts about the universe. At the same time, however, it is the essence of the scientific method that the conclusions of empirical research are tentative and subject to revision, because they represent inferences about the nature of reality based on the results of experimentation and observation.” Because the plaintiff alleged “false advertising not because any of the data presented were incorrect but because the way they were presented and the conclusions drawn from them were allegedly misleading,” and where “the authors readily disclosed the potential shortcomings of their methodology and their potential conflicts of interest,” the court agreed with the lower court that the article’s contents are not actionable.