Implied Claims and Communication Surveys

A. Introduction: Types of Actionable Claims
Advertisers are liable for widely disseminated commercial speech
that is false or misleading. Actionable claims generally fall into three
categories: (i) literally false claims; (ii) claims that are false by
necessary implication and thus deemed to be literally false; and
(iii) impliedly false claims. A literally false claim is one that is false on
its face. For example, a commercial may assert, “Painkiller X is
formulated for nighttime use.” However, if Painkiller X is not formulated
for nighttime use, but instead works the same as other analgesics, this
claim is literally false.
An advertisement is literally false by necessary implication when the
claim necessarily implies a message that is false, as if the false message
had been explicitly stated. For instance, a product may be named
“Nighttime Painkiller X.” This claim is deemed literally false if the
product works no differently from other painkillers because the name
necessarily implies formulation for nighttime use. Literally false claims
are actionable and may be enjoined without evidence that consumers
were misled by such claims because courts will assume that the
statements actually deceived consumers.
An advertisement is impliedly false when it is literally true, but
communicates a false or misleading message. For example, an advertiser
may air a commercial stating, “Try Painkiller X before bed.” Although
this advertisement does not expressly state or necessarily imply that
Painkiller X is specially formulated for nighttime use, consumers might
nevertheless understand the claim as communicating that Painkiller X is
formulated for use at night. A literally truthful claim that is perceived by
a significant number of consumers as communicating a false message
may give rise to the following claims: (1) a lawsuit commenced under
the Lanham Act, (2) a challenge at the National Advertising Division of
the Better Business Bureau (NAD), or (3) a proceeding brought by the
Federal Trade Commission (FTC).
This chapter focuses on the third category of claimimpliedly false
claims. As discussed below, the burdens of proof and the type s of
evidence needed to prove such claims vary by forum.
Advertising Claim Substantiation Handbook
B. Lanham Act Claims
1. Burden of Proof
A Lanham Act plaintiff bears an additional burden of proof when
alleging implied falsity than when alleging that an advertisement is
literally false. When a claim is based upon a claim that is impliedly false,
is not sufficient for a plaintiff to show that the implied claim is
unsubstantiated. Rather, to prevail the plaintiff first must prove that the
advertisement in question tends to mislead or confuse consumers by
showing “that a not insubstantial number of consumers . . . hold the false
belief allegedly communicated by the ad. Absent such a threshold
showing, an implied falsehood claim must fail.”1 The plaintiff must also
demonstrate he or she suffered an injury from the ad, which requires the
plaintiff to demonstrate that a “statistically significant” part of the
claim’s audience holds the false belief that the challenged advertisement
2. Communication Surveys
Judges are not supposed to determine on their own whether an
advertisement communicates an implied claim.3 As explained by the
Second Circuit Court of Appeals in American Home Products v. Johnson
& Johnson,4 “the court’s reaction is at best not determinative and at
worst irrelevant. The question in such cases iswhat does the person to
whom the advertisement is addressed find to be the message?”5 To that
end, in assessing whether the requisite percentage of consumers takes
1. Johnson & Johnson-Merck Consumer Pharm. v. SmithKline Beecham
Corp., 960 F.2d 294, 298 (2d Cir. 1992) (internal citation omitted).
2. Id.
3. In contrast, under the false by necessary implication doctrine, judges can
determine on their own that an advertisement is literally false if the judge
determines that the words or images, considered in context, “necessarily
imply” a false message. See, e.g., Time Warner Cable v. DirecTV, Inc.,
497 F.3d 144, 158 (2d Cir. 2007) (affirming district court’s holding that
the advertisement’s assertion that “settling for cable would be illogical
“unambiguously mad e the false claim that cable’s HD p icture quality is
inferior to that of DirecTV’s.”).
4. 577 F.2d 160 (2d Cir.1978).
5. Id. at 166.

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