Positive results of scientific research on a company’s products can provide a tempting topic for advertising and promotion. If an article published in a well-established, peer-reviewed journal says that your company’s products are safe, effective, healthy, or environmentally-friendly, why not communicate those findings to your customers in sales materials, or at a professional conference? Publicizing the results of scientific research in advertising or promotional material may enhance a company’s reputation or increase product sales, but it is important to do so carefully, as competitors may take issue with the validity of the scientific research itself, or the way in which the results are characterized. A recent federal appellate decision in Eastman Chem. Co. v. PlastiPure, Inc., No. 13-51087, 2014 WL 7271384 (5th Cir. Dec. 22, 2014), demonstrates that the use of scientific research in advertising material can lead to liability for false advertising under the Lanham Act.
The court in Eastman upheld a jury verdict of false advertising arising from PlastiPure’s distribution of a sales brochure that summarized scientific research about Eastman’s plastic resin, while also finding that the publication of the underlying scientific research itself would be protected First Amendment activity.
PlastiPure’s Role in Developing and Disseminating the Disputed Scientific Research
Eastman and Plastipure are competitors in the sale of plastic resins used to manufacture water and baby bottles and other food containers. Eastman launched the sale of a plastic resin under the brand name Tritan as an alternative to polycarbonates containing bisphenol A (BPA), considered harmful to humans by causing estrogenic activity (EA). Eastman’s own testing showed that Tritan did not exhibit EA. PlastiPure and its co-defendant CertiChem are affiliated companies founded by the same individual, a professor of neurobiology. PlastiPure manufactures its own plastic resin that it claims does not exhibit EA, and CertiChem tests material for various types of hormonal activity.
CertiChem authored an article in a peer-reviewed scientific journal named Environmental Health, published by the National Institutes of Health, summarizing the results of its testing of more than 500 commercially-available plastic products. Some of the products tested by CertiChem were made with Eastman’s plastic resin, although the brand name Tritan was not mentioned in the journal article. Prior to publication of the article, PlastiPure distributed a sales brochure at a trade show and directly to customers entitled “EA-Free Plastic Products: Beyond BPA-Free.” The brochure contained a chart derived from CertiChem’s research that was subsequently published in the scientific journal. The chart in the sales brochure depicted products containing Eastman’s resin – identified by the name Tritan -- as having significant levels of EA.
Eastman sued PlastiPure and CertiChem for false advertising and unfair competition under the federal Lanham Act and state common law. After a jury trial with battling experts, the jury found in favor of Eastman, holding the defendants liable for a willful violation of the Lanham Act. The district court entered an injunction prohibiting the defendants from further distribution of the sales brochure or from making any other statements about the EA activity of Eastman’s Tritan plastic resin in connection with the sale, advertisement or promotion of PlastiPure’s products. On appeal to the Fifth Circuit, PlastiPure and CertiChem argued that the injunction was improper because the allegedly false statements were “scientific opinions rather than ascertainable facts.” The Fifth Circuit disagreed.
Use of Scientific Research in Advertising and Promotion
The Eastman court first stated a basic premise of federal false advertising law concerning facts vs. opinions: “Essential to any claim under section 43(a) of the Lanham Act is a determination of whether the challenged statement is one of fact – actionable under section 43(a) – or one of general opinion – not actionable under section 43(a).” Although statements made in academic literature directed to the scientific community may be considered scientific opinions, in this case, Eastman was not suing the defendants for publishing a scientific paper. Rather, Eastman challenged statements made by PlastiPure to customers in advertising and promotional material, outside of the full context of the actual journal article that would provide details about the data collected and conclusions drawn, the experimental methodology and potential conflicts of interest.
The Fifth Circuit found it notable that PlastiPure’s sales brochure did not include the full article itself, as the brochure was distributed prior to the publication of the journal article. Moreover, the sales brochure did not “simply tout the article’s finding.” Rather, the brochure specifically highlighted the alleged EA content of Eastman’s Tritan, even though the journal article never mentioned Tritan by name. The court concluded: “Advertisements do not become immune from Lanham Act scrutiny simply because their claims are open to scientific or public debate.” Further determining that there was sufficient evidence upon which a jury could have found that the statements in PlastiPure’s sales brochure were false, the court affirmed the jury verdict of false advertising by PlastiPure and CertiChem.
The Eastman court took pains to distinguish what could be considered a conflicting decision by the Second Circuit Court of Appeals in ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490 (2d Cir. 2013). In that case, the plaintiff had sought to enjoin commercially harmful, allegedly false statements made by the defendants in a scientific journal about plaintiff’s surfactants used to treat the lungs of premature infants. The journal article was the primary vehicle of dissemination of the allegedly false statements, but there was secondary distribution as well in the form of a press release and other promotional materials for the defendant’s competitive products that cited the article’s findings. The Second Circuit affirmed the grant of a motion to dismiss plaintiff’s claims under the Lanham Act and for tortious interference under state law, holding that the allegedly false statements in scientific literature were protected from liability because they were “more closely akin to matters of opinion.” The opinion in ONY has been criticized for giving insufficient attention to the dissemination of the allegedly flawed scientific research in marketing materials and for potentially creating an incentive for corporations to perform studies skewed towards finding favorable results in the hopes that a peer-reviewed publication will accept them, which could then in turn be used for advertising purposes. Recent Case, 127 Harv. L. Rev. 1815, 1819 (2014).
According to the Fifth Circuit in Eastman, even if the Second Circuit’s decision in ONY was binding in the Fifth Circuit, ONY presented different circumstances because: (1) the plaintiff’s cause of action in ONY against the “secondary” promotional use of the scientific research was only for tortious interference, not for false advertising; and (2) the secondary distribution was limited to the issuance of a press release summarizing the article’s findings and the dissemination of the article itself. As the Fifth Circuit observed, there is an important distinction between merely presenting the conclusions of a scientific article – which is how it characterized the defendants’ conduct in ONY -- and the defendants’ actions in Eastman, transforming snippets of a scientific paper that never mentioned the plaintiff’s Tritan product by name into a commercial advertisement claiming that Tritan is harmful.
• The use of scientific research for commercial marketing purposes may lead to liability for false advertising if the underlying research is found to be false or misleading.
• The risk of liability increases if a company cites only selected excerpts from published scientific research in advertising material, where the complete context of the research, including disclosures, qualifications or other explanations, is necessary for a full understanding of the conclusions drawn in the published research.
• While the 5th Circuit in Eastman attempted to reconcile its ruling with the Second Circuit’s decision in Ony, subsequent decisions may find Eastman to be more persuasive, as it squarely addressed the issue of liability for false advertising under the Lanham Act arising from the use of scientific research for advertising and promotional purposes.