Advertiser Jumps the Gun With Brochure Touting Tests; Fifth Circuit Brushes Off First Amendment Challenge to Lanham Act Claims

1Like claims for defamation or commercial disparagement, Lanham Act claims are viable only if they  involve statements of fact, rather than opinion.  But what happens if an advertising statement concerns an issue that is a matter of scientific debate?  Does that make the statement an opinion, and therefore non-actionable?  The answer, of course, is “it depends” — as illustrated by a recent Fifth Circuit case, and how it distinguished itself from a Second Circuit case with a different outcome.


The Fifth Circuit case, Eastman Chemical Co. v. PlastiPure, Inc., involved two companies who are rival manufacturers of plastics used in food and water containers.  Following widespread public concern about the potentially harmful effects of plastics containing the chemical BPA (bisphenol A) — specifically, whether BPA has a property called estrogen activity (EA), which in turn can cause harmful health effects at certain levels — both companies were touting alternative, non-EA plastics.


The advertiser, PlastiPure, had circulated a brochure containing a chart showing EA levels of various products.  Products made from Eastman’s plastics were shown as having a high level of EA, and the caption to the chart stated: “Examples of test results of products claiming to be EA-free . . .  are given in the figure to the right.  Most examples are made from Eastman’s [plastic].”  These test results, in turn, were gleaned from research that PlastiPure-affiliated scientists had conducted and were planning to publish in a peer-reviewed journal, Environmental Health Perspectives.

Eastman filed suit for violation of Section 43(a) of the Lanham Act (as well as a state law claim), and the case went to a jury trial with a full-scale battle of the experts.  Eastman’s experts testified that the PlastiPure researchers’ study was unreliable, and that the only reliable studies showed that Eastman’s products were EA-free.  The jury found in favor of Eastman, and the district court judge enjoined PlastiPure from further distributing its brochure and from making any similar statements in its advertising or promotion.

Fact or Opinion?

Most Lanham Act cases involve relatively straightforward questions about whether one product is more effective than another, or is more often preferred by consumers.  Such cases usually turn on whether the advertiser has conducted a test of that is sufficiently reliable to support its claims.  (For one memorable analysis of tests involving the efficacy of rival kitty litter products, readers may enjoy this opinion by Judge Rakoff in the Southern District of New York.)

The question of toxicity of BPA, however, is one of widespread public health concern and ongoing scientific discussion.  The U.S. FDA’s position is that BPA appears to be safe, at least in the low concentrations found in foods and drinks actually ingested by consumers, but that further study is warranted. Many environmental activists disagree, however, and cite a “tobacco industry-style campaign” to bury evidence.  This is clearly a matter of debate that is covered by the First Amendment.  Does that make PlastiPure’s statements matters of opinion, and therefore outside the purview of the Lanham Act?

This was the primary argument PlastiPure advanced on appeal.  PlastiPure hung its hat on a Second Circuit opinion, ONY, Inc. v. Cornerstone Therapeutics. In that case, the defendant had conducted research tending to show that its treatment for infant respiratory conditions was more effective than the plaintiff’s.  The researchers had presented their findings at pediatric society meetings and published them in a peer-reviewed journal, and the defendant had also issued a press release touting the study’s conclusions.  When the plaintiff sued for violation of the Lanham Act and state law, however, the district court dismissed the complaint.  The Second Circuit affirmed this outcome, holding that statements in scientific literature “are more closely akin to matters of opinion, and are so understood by the relevant scientific communities.”

Circuit Split?

Turning back to PlastiPure, part of the Fifth Circuit’s analysis was easy:  Eastman’s case had nothing to do with PlastiPure’s scientific article, which was not at issue and was not covered by the district court’s injunction; therefore, protection of the article under the First Amendment was not implicated.  Further, statements in promotional brochures directed at consumers are not somehow whitewashed simply because similar statements are also made in a protected article.  As the court concluded: “Advertisements do not become immune from Lanham Act scrutiny simply because their claims are open to scientific or public debate.  Otherwise, the Lanham Act would hardly ever be enforceable — many, if not most, products may be tied to public concerns with the environment, energy, economic policy, or individual health and safety.”

Things got a little stickier, however, when the Fifth Circuit discussed the fact that the ONY opinion had upheld dismissal of claims based upon the defendant’s press release and promotional materials.  If the defendant’s test results in fact resulted from unreliable methodology, why were those advertising statements immune?  The Fifth Circuit began by emphasizing that the ONY opinion analyzed that issue under state law, not the Lanham Act.  Then, it drew some factual distinctions, the most important of which were that the PlastiPure brochure actually predated publication of its researchers’ study (unlike the ONY defendant’s materials), and that the brochure did more than simply tout the article’s findings, in that it referenced Eastman’s product by name while the article itself did not (although it is not clear why this last point should matter, since the study was in fact conducted using Eastman’s products).

The Fifth Circuit’s holding that “touting” materials are separately actionable, notwithstanding the First Amendment protections afforded to scientific articles, is consistent with several district court holdings — for example, Judge Stearns’ opinion here in the District of Massachusetts involving the efficacy of rival treatments for Gaucher disease.  It remains to be seen whether the Second Circuit — regarded by some as the most influential circuit court on advertising issues — agrees with this analysis under the Lanham Act.  In the meantime, many other questions for advertisers remain:

  • How important is the fact that an advertiser’s substantiating research is published in a peer-reviewed journal, as opposed to a trade magazine or some other publication? Are the latter categories somehow outside First Amendment protection?


  • What exactly can a press release or brochure say about a published study — indeed, is it safe to give any summary for lay people at all?


  • Are the rules more lax when an advertiser is discussing independent, non-sponsored research?

Stay tuned.

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