Eastman Chemical Co. v. Plastipure, Inc., 2014 WL 7271384, No.
13–51087 (5th Cir. Dec. 22, 2014)
A jury found that Plastipure (and defendant CertiChem)
engaged in false advertising (discussed
here). The court of appeals affirmed
the entry of an injunction. Despite
Plastipure’s reliance on the Second Circuit’s ONY decision to claim First Amendment protection for its speech,
the court ruled, “the Lanham Act prohibits false commercial speech even when
that speech makes scientific claims.”
Eastman makes a plastic resin, Tritan, and sells it to make water
bottles, baby bottles, food containers, and other consumer products. Consumers became concerned that polycarbonate,
to which Tritan is an alternative, contained a chemical, bisphenol A (BPA), that
could be harmful to humans. These
concerns were based on studies “purporting to show that BPA could activate
estrogen receptors in the human body.”
Estrogenically active chemicals can trigger hormone-dependent cancers,
reproductive abnormalities, and other negative health conditions. Eastman conducted tests that, it contended,
showed that Tritan was not estrogenically active.
Plastipure likewise “hoped to seize on the opportunity
created by the public’s desire for BPA-free plastics” with its own competing
plastic resin sold to manufacturers.
Plastipure and CertiChem were founded by Dr. George Bittner, a professor
of neurobiology at the University of Texas at Austin. While Plastipure sells the resin, “CertiChem’s
primary focus is on testing materials for various sorts of hormonal activity.” “In 2011, CertiChem published an article [in
a peer-reviewed journal published by NIH] summarizing the results of its
testing of more than 500 commercially available plastic products.” Tritan products
were tested, but Tritan was not mentioned by name.
Before the article was published, Plastipure distributed a
sales brochure, “EA [Estrogenic activity]–Free Plastic Products: Beyond BPA–Free.”
The brochure contained a chart depicting products containing “Eastman’s Tritan”
as having significant levels of EA. The caption stated: “Examples of test
results of products claiming to be EA-free or made from materials claiming to
be EA-free are given in the figure to the right. Most examples are made from
Eastman’s Tritan resin.” Eastman
sued.
 |
| Chart from Plastipure's brochure |
The parties offered competing scientific evidence at
trial. The jury ruled for Eastman, and
the district court found a willful violation of §43(a), unfair competition
under Texas common law, and conspiracy.
The district court enjoined Plastipure from distributing its sales
brochure or claiming that “(1) Tritan resins and products leach chemicals
having significant estrogenic activity; (2) Tritan, or products made with
Tritan, are dangerous to human health because they exhibit estrogenic activity;
or (3) Tritan resins and products leach chemicals having significant estrogenic
activity after common-use stresses.”
On appeal, Plastipure claimed that its statements were
scientific opinions, not factual claims.
A statement of fact can be judged true or false using empirical
methods. It must be a specific and
measurable claim, “capable of being proved false or of being reasonably
interpreted as a statement of objective fact.”
By contrast, bald assertions of superiority and exaggeration, bluster
and boast are nonactionable opinions, as are predictions of future events.
Plastipure argued that “commercial statements relating to
live scientific controversies should be treated as opinions for Lanham Act
purposes,” in order to protect academic freedom and the free flow of scientific
ideas. It relied on ONY,
Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490 (2d Cir. 2013), which
the court here characterized as concluding that “the First Amendment places
scientific debates unfolding within the scientific community beyond the reach
of the Lanham Act.” Statements in
scientific literature are, ONY reasoned,
more like opinions than factual claims.
This case wasn’t governed by ONY, because the plaintiff there sought to enjoin statements
“within the academic literature and directed at the scientific community.” (Which just happened to be the consumer
community, too.) Here, Eastman didn’t
sue Plastipure for publishing in a scientific journal, but for ads directed at
nonscientist customers without the full scientific context, including a
description of the data, the methodology, conflicts of interest, and
divergences between raw data and the experimenter’s conclusions. “In this commercial context, the First
Amendment is no obstacle to enforcement of the Lanham Act.”
It didn’t matter that the commercial speech here concerned a
topic of scientific debate:
Advertisements do not become immune
from Lanham Act scrutiny simply because their claims are open to scientific or
public debate. Otherwise, the Lanham Act would hardly ever be
enforceable—“many, if not most, products may be tied to public concerns with
the environment, energy, economic policy, or individual health and safety.” [Central Hudson.] The Supreme Court has
“made clear that advertising which links a product to a current public debate
is not thereby entitled to the constitutional protection afforded noncommercial
speech.” [Bolger.] … The First
Amendment ensures a robust discourse in the pages of academic journals, but it
does not immunize false or misleading commercial claims.
True, ONY also
rejected a tortious interference claim regarding the defendants’ “touting and
distributing the article’s findings for promotional purposes.” Even were that binding, it wouldn’t matter
here. First, that was a tortious
interference claim, not a Lanham Act claim.
Second, the “nature” of the secondary distribution in ONY differed: there, it was limited to
issuing a press release summarizing the article’s findings and disseminating
the article itself. By contrast, the
conduct here didn’t include any dissemination of the article. The sales brochure, distributed prior to the
article’s publication, specifically highlighted Tritan’s alleged EA content,
while the article never even mentioned Tritan by name. This was the difference between presenting an
article’s conclusions and “transform[ing] snippets of ... a paper which never
mentions Tritan or Eastman by name ... into commercial advertisements claiming
Tritan is harmful.”
The injunction only applied to statements made “in
connection with any advertising, promotion, offering for sale, or sale of goods
or services.” Plastipure could continue researching and publishing. But it couldn’t push its product by making
the claims the jury found to be false and misleading.
The injunction allowed Plastipure to seek relief if new
research proved that the statements at issue were no longer false and
misleading. Plastipure argued that this
provision showed that its statements weren’t statements of objective fact: a
statement of historical fact such as “Tritan has EA” couldn’t be false one day
and true the next. That mistook the
nature of the issue. The fact that
Plastipure might someday prove the truth of its statements didn’t make the
injunction improper; “[i]f it did, companies could make all sorts of
unsupported claims and then avoid liability by arguing that they might be able
to prove the truth of the claims at some point in the future.” Instead, an injunction could be modified or
dissolved if the factual circumstances changed.
Comment: I think Plastipure’s argument collapses the idea of
truth with the idea of evidence. Courts
and juries use evidence to determine what is true. They might be wrong; that’s implicit in the
process. But “wrong” means that there is
a “right”—a verifiable, objective reality.
Compare: “not
even wrong.” The Lanham Act targets
objective claims. That we may revise our
beliefs in what the objective truth is
doesn’t mean that it doesn’t exist, or that a decision was against the weight
of the evidence at the time it was made.
Plastipure also challenged the sufficiency of the evidence,
but a reasonable jury could have found falsity.
Eastman provided tests from four separate labs finding no estrogenic
activity in Tritan; its expert witnesses testified that Tritan was EA-free and
harmless, that most of Plastipure’s tests weren’t scientifically reliable, and
that the few reliable tests actually showed no evidence of EA. There was, naturally, contrary evidence,
though no expert ever testified that Tritan was harmful to humans. The jury was free to credit the evidence of literal
falsity, and independently to find misleadingness (including deceptiveness and
materiality), an independent basis for injunctive relief.
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