The DNR Tattoo

Last week, the Associated Press reported the fascinating story of an unconscious man admitted in acute distress to Miami’s Jackson Memorial Hospital. The words “Do Not Resuscitate” were tattooed across his upper chest, where one would see them before engaging in chest compressions. He carried no identification, so the medical staff could not reach his next of kin. A decision had to be made immediately, however: do we attempt to revive him?

If doctors took the tattoo at face value, the patient would die. If they rejected the literal words, reading ambiguity into it (perhaps it was merely the result of youthful indiscretion), he might live. The stakes could not have been higher. “We’ve always joked about this, but holy crap, this man actually did it,” said the attending ER physician. “You look at it, laugh a little, and then go: Oh no, I actually have to deal with this.” Fortunately, Jackson Memorial has an ethics team on call for these kinds of situations, and after swift consideration, they recommended that the doctors honor the man’s tattooed request — they allowed the man to die.

Apparently, this is not the first DNR tattoo story. An author in the Journal of Internal Medicine writes of a patient admitted to the hospital for serious surgery, who had the letters “D.N.R.” tattooed on his sternum. When interviewed as part of preoperative procedure, he indicated that he in fact did want to be resuscitated if he went into arrest during surgery, contrary to what was written on his chest. He explained that he acquired the DNR tattoo after losing a drunken poker bet. The author dryly remarks, “It was suggested that he consider tattoo removal to circumvent future confusion about his code status.” The patient declined, however, saying that “he did not think anyone would take his tattoo seriously…”

Can Advertisers Be Taken at Their Word?

The tattoo story has me thinking about its application to advertising. In our line of work, we are frequently confronted with ad copy that expressly says one thing, but arguably implies something else. Indeed, most comparative advertising disputes arise from this kind of situation. The advertiser has carefully crafted a claim, believing it to be truthful and well substantiated. A challenger argues that the literal words may be true, but that the claim also implies something different, and that the different implication is false. Very few sophisticated advertisers are careless or unscrupulous enough to communicate literally false claims. Arguing about implied claims is where the action is.

The Lanham Act case law distinguishes between literally false claims and implicitly false claims. See, e.g., Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharmaceutical Co., 290 F.3d 578, 586 (3d Cir. 2002). The former category of claims is comprised of statements that are unambiguous and are susceptible to only one reasonable interpretation. The latter category consists of statements that are ambiguous insofar as they communicate at least two plausible meanings. To prevail in court, a plaintiff must establish the existence of the implied claim by means of a consumer survey (or other extrinsic evidence), and then prove that claim false. To show there is an implied claim, the plaintiff’s survey must establish that a “substantial” number of consumers “acting reasonably under the circumstances,” took away the alleged false meaning. See, e.g., Johnson & Johnson-Merck Pharmaceutical Co. v. Smithkline Beecham Corp, 960 F.2d 298 (2d Cir. 1992).

The courts have often grappled with the dividing line between literal meaning and possible ambiguity. Not every conceivable ambiguity precludes a finding of literal falsity; courts focus on whether ambiguities are plausible enough to require the submission of a survey. See, e.g., United Industries Corp. v. Clorox Co., 140 F.3d 1175 (8th Cir. 1998) (finding claim that a roach bait “kills roaches in 24 hours” sufficiently limited to content of roaches that come into contact with the bait, and not to refer to eradicating all roaches in the home within 24 hours). This is an important gatekeeping function. If the court believes a claim is literally stated, and not susceptible to additional, implied meanings, it will not even consider the attempt by a plaintiff to use consumer survey evidence to vary the meaning of the literal words. See Mead Johnson Company v. Abbott Laboratories, 201 F.3d 883 (7 th Cir. 2000) (“So far as we can tell . . . never before has survey research been used to determine the meaning of words, or to set the standard to which objectively verifiable claims must be held.”); Pernod-Ricard USA, LLC v. Bacardi USA, Inc., 653 F.3d 241 (3d Cir. 2011) (“there may be cases, and this is one, in which a court can properly say that no reasonable person could be misled by the advertisement in question” and therefore conclude that survey evidence is inappropriate).

The National Advertising Division does not require a challenger to prove the existence of implied claims with a survey. In the absence of reliable survey evidence, the NAD famously “steps into the shoes of the consumer” to interpret the claim. See, e.g., McNeil-PPC, Inc. (Stayfree Dry Max), Report # 4372, NAD Case Reports (8/2005). That effectively means the NAD staff will use their best judgment and experience to interpret the claim – a process that, in the experience of this writer, tends to be “pro-plaintiff” and expansive in orientation.

If one had all the time in the world, one could conduct a consumer survey of the DNR tattoo, and it is likely that despite its seemingly unambiguous verbiage, there would be a split of consumer interpretation, with some saying that it means exactly what it says (“Do Not Resuscitate”), with others – perhaps influenced by the gravity of the decision – leaning towards the possibility that the words should not be taken literally. Of course, the doctors at Jackson Memorial did not have that luxury, and it is not clear that the survey would have gotten them any closer to the proper decision.

One might also ask the advertiser (or patient) what it meant when it said those words, but in the case of advertisers and unconscious patients, they will rarely reveal their true intentions when the situation is most dire. Given this, can one always find ambiguity, even in the most literal statements? What is NAD doing when it “steps into the shoes of the consumer” to interpret advertising claims? Is it actually importing other values, such as balancing the harms between challenger and advertiser?

NAD has itself been confronted with this dilemma on several occasions, although it most often arises in a different context. Consider the case of Verizon Communications, Inc. (Verizon 4G LTE Smartphones), Report # 5411, NAD Case Reports (1/2012). There, AT&T challenged Verizon’s advertising claim that Verizon 4G LTE Smartphones are “Twice as fast as any AT&T smartphone.” AT&T contended that the claim was literally false because AT&T’s smartphones were equally as fast, having similar processing speed. Verizon countered that this was beside the point, because the claim was not about the processing speed of the phones per se, but rather intended to highlight the fact that Verizon’s smartphones, when operated on Verizon’s LTE network, ran twice as fast as AT&T’s phones operating on the AT&T network.

Verizon argued that AT&T’s reading of the claim was unreasonable and should be rejected. It reasoned that the context of the advertising, which compared network speeds, should trump a literal interpretation. AT&T countered that, under NAD precedent, Verizon is responsible for “all reasonable interpretations” of a claim, and the literal interpretation can never be rejected as unreasonable. Although NAD did not go so far as to adopt this as an inflexible maxim of claim interpretation, the fact that Verizon was attempting to deny that its claim would be understood by consumers to mean what its words literally stated, certainly played into NAD’s recommendation that Verizon’s claim should be discontinued.

Applying these principles to the DNR tattooed patient, it seems as though the court would most likely stop at the interpretation that the patient does not wish to be resuscitated, thus killing the patient. Our patient with the drunkenly obtained tattoo would die as well if his case came into court. No amount of survey evidence would save him, as the court would refuse to consider it.

The situation might be reversed at NAD, however. There, the NAD would likely recognize both possible meanings. It would certainly err on the side of accepting the literal meaning as one reasonable interpretation of the claim, but it would consider the context and possible alternative interpretation as well. What that would mean in implementation is unclear, so it is fortunate that we don’t have to rely on NAD for such decisions.