False Advertising
False advertising is controlled by the Lanham Act, which provides a cause of action when the defendant:
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.
See 15 U.S.C. § 1125(a)(1)(B). Note that this is a provision for commercial harm; consumers do not have standing under this provision.
A five-factor test is used to establish false advertising: (1) a false statement of fact about the defendant's own product or another's product; (2) the statement actually deceived or has the tendency to deceive a substantial segment of the defendant's audience; (3) the deception is material, in that it is likely to influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement. See American Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387 (8th Cir. 2004).
False advertising comes in two forms: (1) literally false factual commercial claims; and (2) literally true or ambiguous factual claims which implicitly convey a false impression, are misleading in context, or are likely to deceive consumers. Id.
Puffery is an exception and consists of: (1) exaggerated statements of bluster or boast upon which no reasonable consumer would rely; and (2) vague or highly subjective claims of product superiority, including bald assertions of superiority. Id.
Arkansas False Advertising Law: Arkansas does not have a false advertising statute comparable to this provision of the Lanham Act.
