Monday, August 12, 2019

anti-tanning public service campaign targeted all tanning salons, thus couldn't disparage them

JB & Associates, Inc. v. Nebraska Cancer Coalition, --- N.W.2d ----, 303 Neb. 855, No. S-18-719, 2019 WL 3756342 (Aug. 9, 2019)

Appellants, several tanning salons, appealed their dismissal of defamation and product disparagement claims under Nebraska’s Uniform Deceptive Trade Practices Act (UDTPA). The NCC said negative things about tanning beds generally, not anything about any specific tanning salong.  This wasn’t enough to satisfy the requirement that defamatory or disparaging statements be “of and concerning” appellants.

Appellants “allegedly accounted for between 68 to 71 percent of the known tanning salons in the Omaha and Lincoln, Nebraska, markets and approximately 14 to 18 percent of all the entities in Nebraska that provide indoor tanning services.”  In 2014, NCC started a campaign named “The Bed is Dead” to educate the public on the dangers of indoor tanning. Statements included: “Tanning Causes More Cancers than Cigarettes”; “Tanning beds have been proven to cause skin cancer”; “Just one indoor tanning session increases your risk of melanoma by 20% and each additional use during the same year boosts risk by another 2%”; and “Tanning is addictive. One study produced withdrawal symptoms in frequent tanners with narcotic antagonists such as are used in emergency rooms. Studies find higher rates of alcohol, tobacco, and drug use in females that tan.” The website also said: “Tanning facilities do not require a license to operate in Nebraska. ... In 2010, the U.S. Federal Trade Commission ordered the Indoor Tanning Association to cease false advertising claims: 1) that tanning is safe or healthy, 2) that tanning poses no danger, and 3) that tanning does not increase risk of skin cancer.... Yet, a congressional investigative report two years later found:... Nine out of ten salons DENIED KNOWN RISKS of indoor tanning.”  NCC promoted its websites in many ways, including dermatologist partners who visited Omaha schools and encouraged students to go to the website.

“According to managing staff and employees of appellants, customers asked questions about appellants’ facilities and the dangers of indoor training after visiting appellees’ The Bed is Dead website.”

The district court construed the UDTPA, which states that “[a] person engages in a deceptive trade practice when, in the course of his or her business, vocation, or occupation, he or she ... [d]isparages the goods, services, or business of another by false or misleading representation of fact” (emphasis added).  The state Supreme Court agreed that this language requires reference to a specific producer’s product, rather than to an entire industry as a whole.  “[T]he Legislature’s use of the ‘of another’ language indicates an incorporation of the same ‘of and concerning’ element present in common-law actions aimed at unfair and deceptive trade practices.” [What about statements that “our widget is 15% better than every other widget”?  Presumably that doesn’t target an entire industry in the same way, and it could also be a falsehood about the speaker’s own goods, so construing it as disparaging isn’t required for false advertising liability.]

Likewise, defamation requires statements to be “of and concerning” the plaintiff, rather than about a group as a whole. A group libel claim can meet the “of and concerning” requirement “if either the group is so small that the matter can reasonably be understood to refer to the member or the circumstances of publication reasonably give rise to the conclusion that there is a particular reference to the member.” But that wasn’t the case here. The Bed is Dead campaign was statewide; the website was available to anyone in Nebraska and elsewhere. “Regardless of what internal documents said, which were unavailable to recipients of NCC’s statements, nothing in the surrounding content implied NCC was targeting appellants’ tanning salons, specific locations in the state, or appellants’ specific customer base.”  Affidavits about customer questions in response to the website didn’t indicate that customers believed the statements were about appellants specifically, but rather that they understood that the statements were aimed at indoor tanning in general.

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