Implied Claims and Communication Surveys

• Pages: 23-41

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CHAPTER II

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 claim—impliedly false

claims. As discussed below, the burdens of proof and the type s of

evidence needed to prove such claims vary by forum.

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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

communicates.2

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 is—what 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.