The Fifth Circuit recently distinguished Second Circuit precedent in determining what scientific discourse may constitute false advertising. In Eastman Chemical Company v. Plastipure, Incorporated; Certichem, Incorporated, 2014 WL 7271384 (5th Cir. Dec. 22, 2014) (“Eastman Chemical”), plaintiff alleged that defendants made false scientific statements about plaintiff’s product, “Tritan,” following a scientific study of Tritan. Those statements were made in a sales brochure and other marketing materials distributed at trade shows and directly to potential customers; most assertions concerned Tritan’s harmful levels of estrogenic activity. Plaintiff sued for false advertising. Essential to any false advertising claim under § 43(a) of the Lanham Act is a determination of whether the challenged statement is one of fact – actionable under § 43(a) – or one of general opinion – not actionable under § 43(a). The district court entered a preliminary injunction against defendants, prohibiting them from making certain allegedly false statements about Tritan to any third party in connection with “any advertising, promotion, offering for sale, or sale of goods or services or in any other commercial manner”.
On appeal, defendants argued that commercial statements relating to scientific controversies should be treated as “opinions” for Lanham Act purposes, relying on the Second Circuit’s opinion in ONY Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490 (2d Cir. 2013) (“ONY”). The defendants in ONY had conducted a study concluding that their product was associated with a lower mortality rate and a shorter length of hospital stay than plaintiff’s product. Defendants then hired physicians to present the study’s findings at pediatric society meetings, and those physicians published the findings in an article in a peer-reviewed journal. Plaintiff sued, claiming that the published article contained “five distinct incorrect statements of fact about the relative effectiveness” of the companies’ products. The Second Circuit concluded that the First Amendment placed such scientific debates within the scientific community beyond the reach of the Lanham Act, as such statements were “more closely akin to matters of opinion, and are so understood by the relevant scientific communities.”
The Fifth Circuit distinguished ONY, and upheld the injunction. The Fifth Circuit explained that the plaintiff in ONY “sought to enjoin statements made within the academic literature and directed at the scientific community.” In that context, the statements were opinions, so as not to stifle academic debate and trench upon First Amendment values. On the contrary, the defendants in Eastman Chemical made statements in commercial advertisements directed at customers, and the First Amendment as no obstacle to the enforcement of the Lanham Act. Thus, regardless of a statement’s scientific or public value, a company should be wary before publishing a scientifically-based disparaging statement about its competitor in a commercial context. That is not to say that the tail should wag the dog regarding comparative advertising, but only caveat venditator.