Forthcoming article: Michael A. Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising

Michael A. Carrier
& Rebecca Tushnet, An Antitrust Framework for False Advertising, Iowa Law
Review, Forthcoming
Abstract:

Federal law presumes
that false advertising harms competition. Federal law also presumes that false
advertising is harmless or even helpful to competition. Contradiction is not
unknown to the law, of course. This contradiction, though, is acute. For not
only are both regimes at issue designed to protect competition, but they are
both enforced by the same agency: the Federal Trade Commission, which targets
“unfair competition” through antitrust and consumer protection enforcement.
 Courts’ treatment of
false advertising in antitrust cases makes no sense. While courts have
reasonably evidenced concern that not all false advertising violates antitrust
law, the remedy is not to abandon the false advertising/antitrust interface.
Instead, the solution is to focus on the actors most likely to harm the market:
monopolists and attempted monopolists.
 This Essay proposes
an antitrust framework for false advertising claims. It introduces a
presumption that monopolists engaging in false advertising violate antitrust
law and a rebuttal if the false advertising is ineffective. The framework also
applies to attempted monopolization by incorporating factors such as falsity,
materiality, and harm inherent in false advertising law, along with
competition-centered issues like targeting new market entrants.
 Antitrust has
dismissed false advertising that entrenches monopoly power for too long. This
Essay seeks to resolve the contradiction in the law by showing how false
advertising threatens the proper functioning of markets. Such an approach
promises benefits for false advertising law, antitrust law, and consumers.

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