The last thirty years have witnessed an explosion of false advertising litigation between competitors relating to consumer products, over the counter medications and more recently, with the advent of direct to consumer advertising, prescription drugs as well. These cases have involved all forms of communication, including television commercials, print advertising, promotional materials aimed at professionals, the internet and even face-to-face oral statements. This seminar will be devoted to an in-depth exploration of false advertising law, with particular emphasis on litigation under the Lanham Act.
Following a discussion of the boundaries between commercial and non-commercial speech and the development of the federal remedy for false advertising, we will explore such topics as: what is a literally false claim; the use of consumer surveys to prove that implied claims are being made; how literally false claims are proven false; the analysis of clinical and product tests used to support product claims, including issues of design of tests and analysis of test results; the use of demonstrations in commercials; and issues relating to remedies, including temporary restraining orders, preliminary injunctions, damages and corrective advertising. In addition to some key cases that will be provided online, the materials for the course will consist of expert reports, surveys, testimony and other documents from cases that have actually been litigated in the courts involving products as diverse as potato chips, contact lenses, dental products, analgesics, infant formula, sunscreens and breast cancer drugs. In the last three weeks of the course, students will be divided into groups representing two parties in a case and further divided to address specific issues relating to each party's position. A paper will be required, which will be in the form of an opening statement or summation of one the party's positions. During the semester, one additional shorter paper will be required in which consumer surveys will be critiqued. There is no final examination.
There are no prerequisites for this seminar, other than completion of first year courses. Although the Lanham Act is also a trademark statute, the body of law that has developed in the false advertising area is quite distinct. There is also no need for a scientific background despite what may seem like considerable scientific content. Indeed, one focus of the course is to illustrate how attorneys who are themselves laymen in these areas can simplify complex scientific issues for judges and juries who may have no relevant background at all.