anti-tanning public service campaign targeted all tanning salons, thus couldn’t disparage them

JB & Associates, Inc. v. Nebraska Cancer Coalition, —
N.W.2d —-, 303 Neb. 855, No. S-18-719, 2019 WL 3756342 (Aug. 9, 2019)
Appellants, several tanning salons, appealed their dismissal
of defamation and product disparagement claims under Nebraska’s Uniform
Deceptive Trade Practices Act (UDTPA). The NCC said negative things about tanning
beds generally, not anything about any specific tanning salong.  This wasn’t enough to satisfy the requirement
that defamatory or disparaging statements be “of and concerning” appellants.
Appellants “allegedly accounted for between 68 to 71 percent
of the known tanning salons in the Omaha and Lincoln, Nebraska, markets and
approximately 14 to 18 percent of all the entities in Nebraska that provide
indoor tanning services.”  In 2014, NCC started
a campaign named “The Bed is Dead” to educate the public on the dangers of
indoor tanning. Statements included: “Tanning Causes More Cancers than
Cigarettes”; “Tanning beds have been proven to cause skin cancer”; “Just one
indoor tanning session increases your risk of melanoma by 20% and each
additional use during the same year boosts risk by another 2%”; and “Tanning is
addictive. One study produced withdrawal symptoms in frequent tanners with
narcotic antagonists such as are used in emergency rooms. Studies find higher
rates of alcohol, tobacco, and drug use in females that tan.” The website also
said: “Tanning facilities do not require a license to operate in Nebraska. …
In 2010, the U.S. Federal Trade Commission ordered the Indoor Tanning
Association to cease false advertising claims: 1) that tanning is safe or
healthy, 2) that tanning poses no danger, and 3) that tanning does not increase
risk of skin cancer…. Yet, a congressional investigative report two years
later found:… Nine out of ten salons DENIED KNOWN RISKS of indoor tanning.”  NCC promoted its websites in many ways,
including dermatologist partners who visited Omaha schools and encouraged
students to go to the website.
“According to managing staff and employees of appellants,
customers asked questions about appellants’ facilities and the dangers of
indoor training after visiting appellees’ The Bed is Dead website.”
The district court construed the UDTPA, which states that
“[a] person engages in a deceptive trade practice when, in the course of his or
her business, vocation, or occupation, he or she … [d]isparages the goods,
services, or business of another by false or misleading representation
of fact” (emphasis added).  The state
Supreme Court agreed that this language requires reference to a specific
producer’s product, rather than to an entire industry as a whole.  “[T]he Legislature’s use of the ‘of another’
language indicates an incorporation of the same ‘of and concerning’ element
present in common-law actions aimed at unfair and deceptive trade practices.” [What
about statements that “our widget is 15% better than every other widget”?  Presumably that doesn’t target an entire
industry in the same way, and it could also be a falsehood about the speaker’s
own goods, so construing it as disparaging isn’t required for false advertising
Likewise, defamation requires statements to be “of and
concerning” the plaintiff, rather than about a group as a whole. A group libel
claim can meet the “of and concerning” requirement “if either the group is so
small that the matter can reasonably be understood to refer to the member or
the circumstances of publication reasonably give rise to the conclusion that
there is a particular reference to the member.” But that wasn’t the case here. The
Bed is Dead campaign was statewide; the website was available to anyone in
Nebraska and elsewhere. “Regardless of what internal documents said, which were
unavailable to recipients of NCC’s statements, nothing in the surrounding
content implied NCC was targeting appellants’ tanning salons, specific
locations in the state, or appellants’ specific customer base.”  Affidavits about customer questions in
response to the website didn’t indicate that customers believed the statements
were about appellants specifically, but rather that they understood that the
statements were aimed at indoor tanning in general.

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