Usually, false advertising claims are brought under the Lanham Act, a federal statute, and Minnesota’s Uniform Deceptive Trade Practices Act (“DTPA”), Minn. Stat. §§ 325D.43-.48. The Lanham Act’s false advertising provision is Section 43(a), codified at 15 U.S.C. § 1125(a); the false advertising prong specifically is 15 U.S.C. § 1125(a)(1)(B). The DTPA, for its part, classifies false advertising as a deceptive trade practice, prohibiting (among other things) advertising goods or services with intent not to sell them as advertised. See Minn. Stat. § 325D.44, subd. 1(9)-(11). Below is an explanation of the Lanham Act.

The Lanham Act

The Lanham Act states, in relevant part:

(a) Civil action

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

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(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. § 1125(a)(1)(B) (available at https://www.law.cornell.edu/uscode/text/15/1125). Subsection (a)(1)(A) covers false designation of origin and related unfair competition; subsection (a)(1)(B) is the false advertising provision.

In the Eighth Circuit, which governs Minnesota, a plaintiff must prove the following five elements to establish a false advertising claim under Section 43(a):

  1. Defendant made a false statement of fact about its own products or plaintiff’s products in its advertisement;
  2. Those advertisements actually deceived or have the tendency to deceive a substantial segment of their audience;
  3. The deception is material because it is likely to influence buying decisions;
  4. Defendant caused its falsely advertised goods to enter interstate commerce; and
  5. Plaintiff has been or is likely to be injured as a result of the false statement.

American Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387, 390 (8th Cir. 2004) (quoting United Industries Corp. v. Clorox Co., 140 F.3d 1175, 1180 (8th Cir. 1998)).

Beyond these elements, the Supreme Court has clarified who may bring a false advertising claim. In Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), the Court replaced the lower courts’ competing “standing” tests with a two-part statutory inquiry: the plaintiff’s claimed injury must fall within the statute’s zone of interests, meaning “an injury to a commercial interest in reputation or sales,” and that injury must be “proximately caused by the defendant’s misrepresentations.” A plaintiff need not be a direct competitor of the defendant to sue.

Among the false advertising claims that can be brought under the Lanham Act are false description of goods or services, false advertising about the geographic origin of a good or service, and false comparative advertising. For example, in McNeilab, Inc. v. American Home Products Corp., 848 F.2d 34, 38 (2d Cir. 1988), the Second Circuit reasoned that a misleading comparison implying that Advil is as safe as Tylenol in all respects deprived the manufacturer of Tylenol of a legitimate competitive advantage and “reduced consumers’ incentive to select Tylenol rather than Advil.”