Third Circuit Holds That Burden Is On Advertiser To Prove Truth Of 'Completely Unsubstantiated' Advertising Claims

Profession:Kaye Scholer LLP

Adding a new twist to false advertising law under the Lanham Act, the Third Circuit recently held that a "completely unsubstantiated" advertising claim is per se false and that, in order to prevail with respect to such a claim under Section 43(a) of the Lanham Act, a plaintiff need not come forward with affirmative evidence of the claim's falsity. Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharmaceuticals Co., 2002 WL 987438 (May 14, 2002). In so holding, the Third Circuit has seemingly eased the burden of proof for false advertising plaintiffs, and shifted the burden to advertisers to establish the truth of advertising claims that are "completely unsubstantiated."

Prior to the Third Circuit's decision, the law was settled that to prevail on a false advertising claim under Section 43(a), 28 U.S.C. ß 1125(a), a plaintiff had the burden to prove, among other things, "that a challenged advertise-ment is false or misleading, not merely that it is unsubstantiated by acceptable tests or other proof." Sandoz Pharm. Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 228 (3d Cir. 1990). In order to meet that burden, the plaintiff was required to provide scientific proof or other relevant evidence that the challenged advertising claim was not true. Where an advertiser has made a so-called "establishment claim" - that is, an advertising claim that, according to the advertisement, is supported by tests or studies - the courts have held that the plaintiff need only prove that the relied-upon tests or studies do not establish the proposition for which they were cited or that their methodology was unsound. See, e.g., Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 63 (2d Cir. 1992); McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co., 938 F.2d 1544, 1549 (2d Cir. 1991). Even in cases involving establishment claims, however, the burden has been on the plaintiff to prove that the defendant's claimói.e., that a test or study supports the defendant's advertising claimówas false.1

In Novartis Consumer Health, the Third Circuit appears to have adopted a strikingly different rule for cases involving "completely unsubstantiated" advertising claims. The Third Circuit placed the burden on the defendant to show that it has substantiation for its advertising claimsóeven, as was at issue in the Third Circuit case, for advertising claims that are not express but are necessarily implied. In Novartis Consumer Health, the Court of Appeals considered a...

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