Statements Made in Commercial Advertisements, Even If Based on Statements in Scientific Publications, May Be Subject to Lanham Act Claims
Eastman Chemical Co. v. PlastiPure, Inc. explores the interaction between the First Amendment and Lanham Act false advertisement claims. Specifically, the case addresses the situations in which statements based on peer reviewed articles published in scientific journals may form the bases of such claims. Though the First Amendment may preclude Lanham Act claims alleging that statements in scientific journals are misleading or false, the Lanham Act prohibits false or misleading commercial speech even when that speech makes scientific claims.
The dispute in PlastiPure concerned Tritan, a plastic resin developed by Eastman and used to manufacture water bottles and other consumer products. Eastman launched Tritan as an alternative to polycarbonate, a chemical that some studies have linked with estrogenic activity and that because of its estrogenic activity, may be harmful to humans. Eastman then marketed Tritan as a product that does not exhibit estrogenic activity.
PlastiPure competes with Eastman and manufacturers its own plastic resin that it claims does not exhibit estrogenic activity. In 2011, CertiChem --- a company founded by the same person who founded PlastiPure --- published a peer reviewed article summarizing the results of its testing of more than 500 commercially available plastic products. Though Tritan products were among the products tested, the article did not mention Tritan.
After the research on the article was completed but before the article’s publication, PlastiPure distributed a sales brochure containing a chart that depicted products containing Tritan as having significant levels of estrogenic activity. The chart’s caption stated as follows: “Examples of test results of products claiming to be EA-free or made from materials claiming to be EA-free are given in the figure to the right. Most examples are made from Eastman’s Tritan resin.”
Eastman sued PlastiPure alleging false advertisement under the Lanham Act based in part on PlastiPure’s sales brochure. The jury found that that the statements in the sales brochure were false and that, accordingly, PlastiPure violated the Lanham Act. On appeal, PlastiPure argued that the statements in the brochure were not actionable statements of fact under the Lanham Act. Specifically, PlastiPure contended that commercial statements relating to live scientific controversies should be treated as statements of opinion for Lanham Act purposes because enjoining such statements would stifle academic freedom and inhibit the free flow of academic ideas. The Fifth Circuit disagreed and affirmed the jury verdict.
PlastiPure’s primary authority on appeal was ONY, Inc. v. Cornerstone Therapeutics. In ONY, the defendants conducted a scientific study of the relative efficacy of different non-human surfactants and hired physicians to publish the study’s findings in a peer reviewed journal. The article concluded that the defendants’ surfactant was associated with a lower mortality rate than the plaintiff’s competing surfactants. After the article’s publication, the defendants issued a press release summarizing its conclusions and distributed promotional materials that cited the article’s findings. The plaintiff sued under the Lanham Act alleging, among other things, that the article contained five distinct incorrect statements of fact about the relative effectiveness of the companies’ surfactants.
After the district court dismissed the complaint, the Second Circuit affirmed. The Second Circuit explained that the First Amendment places scientific debates unfolding within the scientific community beyond the reach of the Lanham Act and held that statements in scientific literature “are more closely akin to matters of opinion, and are so understood by the relevant scientific communities.”
In PlastiPure, the Fifth Circuit distinguished ONY. The Fifth Circuit stressed that the ONY plaintiff “sought to enjoin statements made within the academic literature and directed at the scientific community. In that context, the Second Circuit held that the defendants’ statements should be treated as opinions, else the prospect of defamation liability would stifle academic debate and trench upon the First Amendment.” Op. at 7. By contrast, Eastman sought to enjoin statements “made in commercial advertisements and directed at customers. . . . In this commercial context, the First Amendment is no obstacle to the enforcement of the Lanham Act.” Id. The Fifth Circuit held that “[a]dvertisements 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 . . . .” Id. at 8.
Would the result in PlastiPure have been different had PlastiPure published its sales brochure after the article’s publication and had the brochure prefaced the article’s conclusions by attributing those conclusions to the article? In this hypothetical, PlastiPure could argue that the statements in the sales brochure are not false because the brochure simply states the article’s conclusions. In other words, PlastiPure could argue that its statement that the article concluded what it concluded is true. What if PlastiPure went a step further and not only phrased its brochure in terms of what the article concluded, but also added a sentence stating that Eastman disagreed with those conclusions? Until courts address these issues, the Fifth Circuit’s warning remains in place: “The First Amendment ensures a robust discourse in the pages of academic journals, but it does not immunize false or misleading commercial claims.” Op. at 8.