Federal Circuit reads "literal falsity" way too narrowly

BPI Sports, LLC v. Thermolife Int’l LLC, Nos. 2023-1068, 2023-1625, 2023-1112, 2025 WL 1683234 (Fed. Cir. Jun. 16, 2025)

This is a false advertising case involving allegedly false patent marking. Creatine nitrate is an amino-acid nitrate used in dietary supplements. At the time of the trial, ThermoLife owned several patents covering creatine nitrate, which it licensed to manufacturers. BPI sells supplements that compete with licensees of ThermoLife; it sued for false advertising under the Lanham Act and unfair competition under state law in connection with ThermoLife’s CRTN-3, as well as false patent marking under the Patent Act. A jury found that BPI showed false advertising and unfair competition but awarded zero damage, and found in favor of the defendants as to the false patent marking claim. In the cross-appeals, the court found that ThermoLife should have gotten judgment as a matter of law.

“JMOL should be granted only when the [moving party] presents no legally sufficient evidentiary basis for a reasonable jury to find for him on a material element of his cause of action.” Adopting a perjury-like standard, the court of appeals found that no reasonable jury could have found in favor of BPI under the falsity element of a false advertising claim: that CRTN-3 label’s statement of “increase vasodilation” was literally false. (BPI didn’t preserve misleadingness as an alternative ground, and there was no survey or other evidence of consumer reaction in the record.)

The claim was literally true because BPI’s own evidence shows that the dosage disclosed in CRTN-3’s label would “cause vasodilation” for people weighing 113 pounds or less. However, the dosage amount of creatine nitrate needed for “an average adult in the U.S. weighing 177 pounds” is more than the amount disclosed in CRTN-3. But the label didn’t claim to increase vasodilation for average people.

Once again, a court ignores ordinary rules of implicature. Other cases have (in my view correctly) held that a product that self-evidently won’t work for most people can’t claim to “work” in general. Under the Federal Circuit’s view, apparently, an advertiser could claim that its product “treats hair loss” if it could help the small percentage of people whose hair loss stems from a specific vitamin deficiency. That's a mistake, and it's one that thinking about "what would the true message look like?" could help.