scientific claims in ordinary ads aren’t protected opinion

Eastman Chemical Co. v. Plastipure, Inc., 2014 WL 7271384, No. 13–51087 (5th Cir. Dec. 22, 2014)
A jury found that Plastipure (and defendant CertiChem) engaged in false advertising (discussed here).  The court of appeals affirmed the entry of an injunction.  Despite Plastipure’s reliance on the Second Circuit’s ONY decision to claim First Amendment protection for its speech, the court ruled, “the Lanham Act prohibits false commercial speech even when that speech makes scientific claims.”
Eastman makes a plastic resin, Tritan, and sells it to make water bottles, baby bottles, food containers, and other consumer products.  Consumers became concerned that polycarbonate, to which Tritan is an alternative, contained a chemical, bisphenol A (BPA), that could be harmful to humans.  These concerns were based on studies “purporting to show that BPA could activate estrogen receptors in the human body.”  Estrogenically active chemicals can trigger hormone-dependent cancers, reproductive abnormalities, and other negative health conditions.  Eastman conducted tests that, it contended, showed that Tritan was not estrogenically active.
Plastipure likewise “hoped to seize on the opportunity created by the public’s desire for BPA-free plastics” with its own competing plastic resin sold to manufacturers.  Plastipure and CertiChem were founded by Dr. George Bittner, a professor of neurobiology at the University of Texas at Austin.  While Plastipure sells the resin, “CertiChem’s primary focus is on testing materials for various sorts of hormonal activity.”  “In 2011, CertiChem published an article [in a peer-reviewed journal published by NIH] summarizing the results of its testing of more than 500 commercially available plastic products.” Tritan products were tested, but Tritan was not mentioned by name.
Before the article was published, Plastipure distributed a sales brochure, “EA [Estrogenic activity]–Free Plastic Products: Beyond BPA–Free.” The brochure contained a chart depicting products containing “Eastman’s Tritan” as having significant levels of EA. The caption stated: “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. 
Chart from Plastipure’s brochure
The parties offered competing scientific evidence at trial.  The jury ruled for Eastman, and the district court found a willful violation of §43(a), unfair competition under Texas common law, and conspiracy.  The district court enjoined Plastipure from distributing its sales brochure or claiming that “(1) Tritan resins and products leach chemicals having significant estrogenic activity; (2) Tritan, or products made with Tritan, are dangerous to human health because they exhibit estrogenic activity; or (3) Tritan resins and products leach chemicals having significant estrogenic activity after common-use stresses.”
On appeal, Plastipure claimed that its statements were scientific opinions, not factual claims.  A statement of fact can be judged true or false using empirical methods.  It must be a specific and measurable claim, “capable of being proved false or of being reasonably interpreted as a statement of objective fact.”  By contrast, bald assertions of superiority and exaggeration, bluster and boast are nonactionable opinions, as are predictions of future events.
Plastipure argued that “commercial statements relating to live scientific controversies should be treated as opinions for Lanham Act purposes,” in order to protect academic freedom and the free flow of scientific ideas.  It relied on ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490 (2d Cir. 2013), which the court here characterized as concluding that “the First Amendment places scientific debates unfolding within the scientific community beyond the reach of the Lanham Act.”  Statements in scientific literature are, ONY reasoned, more like opinions than factual claims.
This case wasn’t governed by ONY, because the plaintiff there sought to enjoin statements “within the academic literature and directed at the scientific community.”  (Which just happened to be the consumer community, too.)  Here, Eastman didn’t sue Plastipure for publishing in a scientific journal, but for ads directed at nonscientist customers without the full scientific context, including a description of the data, the methodology, conflicts of interest, and divergences between raw data and the experimenter’s conclusions.  “In this commercial context, the First Amendment is no obstacle to enforcement of the Lanham Act.”
It didn’t matter that the commercial speech here concerned a topic of scientific debate:
Advertisements 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—“many, if not most, products may be tied to public concerns with the environment, energy, economic policy, or individual health and safety.” [Central Hudson.] The Supreme Court has “made clear that advertising which links a product to a current public debate is not thereby entitled to the constitutional protection afforded noncommercial speech.” [Bolger.] … The First Amendment ensures a robust discourse in the pages of academic journals, but it does not immunize false or misleading commercial claims.
True, ONY also rejected a tortious interference claim regarding the defendants’ “touting and distributing the article’s findings for promotional purposes.”  Even were that binding, it wouldn’t matter here.  First, that was a tortious interference claim, not a Lanham Act claim.  Second, the “nature” of the secondary distribution in ONY differed: there, it was limited to issuing a press release summarizing the article’s findings and disseminating the article itself.  By contrast, the conduct here didn’t include any dissemination of the article.  The sales brochure, distributed prior to the article’s publication, specifically highlighted Tritan’s alleged EA content, while the article never even mentioned Tritan by name.  This was the difference between presenting an article’s conclusions and “transform[ing] snippets of … a paper which never mentions Tritan or Eastman by name … into commercial advertisements claiming Tritan is harmful.”
The injunction only applied to statements made “in connection with any advertising, promotion, offering for sale, or sale of goods or services.” Plastipure could continue researching and publishing.  But it couldn’t push its product by making the claims the jury found to be false and misleading.
The injunction allowed Plastipure to seek relief if new research proved that the statements at issue were no longer false and misleading.  Plastipure argued that this provision showed that its statements weren’t statements of objective fact: a statement of historical fact such as “Tritan has EA” couldn’t be false one day and true the next.  That mistook the nature of the issue.  The fact that Plastipure might someday prove the truth of its statements didn’t make the injunction improper; “[i]f it did, companies could make all sorts of unsupported claims and then avoid liability by arguing that they might be able to prove the truth of the claims at some point in the future.”  Instead, an injunction could be modified or dissolved if the factual circumstances changed. 
Comment: I think Plastipure’s argument collapses the idea of truth with the idea of evidence.  Courts and juries use evidence to determine what is true.  They might be wrong; that’s implicit in the process.  But “wrong” means that there is a “right”—a verifiable, objective reality.  Compare: “not even wrong.”  The Lanham Act targets objective claims.  That we may revise our beliefs in what the objective truth isdoesn’t mean that it doesn’t exist, or that a decision was against the weight of the evidence at the time it was made.
Plastipure also challenged the sufficiency of the evidence, but a reasonable jury could have found falsity.  Eastman provided tests from four separate labs finding no estrogenic activity in Tritan; its expert witnesses testified that Tritan was EA-free and harmless, that most of Plastipure’s tests weren’t scientifically reliable, and that the few reliable tests actually showed no evidence of EA.  There was, naturally, contrary evidence, though no expert ever testified that Tritan was harmful to humans.  The jury was free to credit the evidence of literal falsity, and independently to find misleadingness (including deceptiveness and materiality), an independent basis for injunctive relief.

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