Ameritox, Ltd. v. Millennium Laboratories, Inc., 2012 WL
33155 (M.D. Fla.)
Ameritox (a drug testing lab) sued Millennium for false
advertising under state and federal law.
Millennium moved to dismiss the Lanham Act claim. The allegedly false statements were contained
in a billing letter to patients; Millennium argued that wasn’t commercial
advertising or promotion because the relevant consumers were medical providers. Ameritox contended that the letter was widely
circulated both to medical providers and to patients, and that both groups were
part of the relevant purchasing public.
The court found this insufficiently pled; among other things, Ameritox
had to allege how many consumers in the relevant purchasing public Millennium
contacted.
Ameritox did sufficiently plead misleadingness: it claimed
that the letter told patients that they weren’t responsible for [Millennium’s?]
co-pay or deductible charges, and that this was misleading because Medicare
patients by law aren’t subject to such charges for clinical lab work anyway. However, Ameritox failed to plead
deceptiveness: the claim that “Millennium's statements are ... likely to
deceive a substantial portion of the targeted customers” was a naked assertion
that couldn’t survive a motion to dismiss. Left unclear is what Ameritox is supposed to
plead. Actual deception isn’t required,
in theory; is Ameritox supposed to plead that it has a survey in hand?
Likewise, Ameritox’s allegation that “Millennium's false or
misleading statements have already, and will continue to, influence materially
purchasing decisions to the extent that customers choose Millennium's services
instead of those offered by Ameritox” was insufficient to plead materiality. The Lanham Act claim was dismissed without
prejudice. The state law unfair
competition claim, based on the same theory, was also dismissed (though note
that it seems quite unlikely that the state law claim requires “commercial
advertising or promotion” or, for that matter, an interstate commerce nexus in
the same way as a Lanham Act claim; nonetheless courts don’t like to do two
analyses where one will do, so there you go).
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