Not Just for 'Consumers': Promotional Statements B2B

• Pages: 189-202

189

CHAPTER X

NOT JUST FOR “CONSUMERS”:

PROMOTIONAL STATEMENTS B2B

Competitor false advertising remedies under the Lanham Act apply

equally to “business-to-business” communications and traditional

“consumer” advertising. A common misconception is that Lanham Act

false advertising cases are limited to “classic” advertising campaigns that

have widespread distribution to the general public. Reinforcing the

misconception, many of the better known Lanham Act false advertising

cases feature consumer products, such as mouthwash,1 chicken,2

sweeteners,3 infant formula,4 and diaper pails.5 Yet there is a different,

but equally important species of Lanham Act cases about promotional

statements that the consuming public never sees: promotions to

businesses.

Business to business (B2B) promotional statements arise in a variety

of contexts, such as when a company sells raw material to a downstream

manufacturer or when a company negotiates product placement on the

shelves of national retailers. Such statements are often made verbally or

in slides and e-mails rather than on billboards and television

commercials. Although statements in business settings are not made to

the general public, they are covered by the Lanham Act’s prohibition

against misleading promotional statements of fact.

Cases in the B2B setting have been sporadic and isolated, and

commentators and jurists have not previously recognized or discussed

these cases as a unique genre of Lanham Act cases. As illustrated by a

pair of New York cases from 2011 involving rodenticides (Reckitt

Benckiser, Inc. v. Motomco Ltd.)6 and ingredients for nutritional

1. McNeil-PPC, Inc. v. Pfizer, Inc., 351 F. Supp. 2d 226 (S.D.N.Y. 2005).

2. Sanderson Farms, Inc. v. Tyson Foods, Inc., 547 F. Supp. 2d 491 (D. Md.

2008).

3. Merisant Co. v. McNeil Nutritionals, LLC, 515 F. Supp. 2d509 (E.D. Pa.

2007).

4. PBM Prods. v. M ead Johnson & Co., 639 F.3d 111 (4th Cir. 2011).

5. Munchkin, Inc. v. Playtex Prods., 2011 WL 2174383 (C.D. Cal. Apr. 11,

2011).

6. 760 F. Supp. 2d 446, 450 (S.D.N.Y. 2011).