literal falsity can exist without bald-faced lies, 9th Circuit confirms

InSinkErator, LLC v. Joneca Co., No. 25-286, 2025 WL 3751867, -- F4th -- (9th Cir. Dec. 29, 2025)

The court of appeals affirms the grant of a preliminary injunction, previously discussed, against Joneca’s advertising of its garbage disposals. InSinkErator argued that Joneca’s horsepower designations were literally false because they do not reflect the output power of the disposals’ motor, despite Joneca’s argument that its designations accurately reflect the electrical power drawn by its units.

“Joneca attributes its lower prices to various mechanical advantages, like its use of direct current and the torque of its smaller grinder turntable.” Horsepower is a unit of power; InSinkErator argued that consumers necessarily understand references to “horsepower” to mean “output horsepower”—the amount of power that a disposal’s motor can provide to the disposal’s grinding mechanism—as opposed to “input horsepower,” the electric power used by the system as a whole. The parties offered competing evidence, including expert declarations; Joneca argued that input power was used for rating disposal units under Underwriters Laboratories standard UL 430.

Was using input power ratings literally false in this context? The district court held that “[t]he advertisement unequivocally claims that a given machine has a specific horsepower, such as 1 HP, 1 1/4 HP, 3/4 HP, or 1/2 HP.” And it accepted a definition introduced by InSinkErator from a national retailer’s website that described horsepower for a disposal unit as “[t]he total power output capability from the included motor.” What about the UL guideline? It was “plainly a safety guide for ensuring that switches and controls can safely handle the input current drawn by a motor,” which provided for current input testing “regardless” of horsepower designations on the motor or accompanying packaging.

Procedural issue: what kind of review should the appellate court give to the district court’s finding of literal falsity by necessary implication? Joneca argued for de novo review to determine the meaning of the ad claims. The court of appeals declined to resolve the issue; even if ad claims should be construed de novo like contract terms, “subsidiary factual findings bearing on construction” are reviewed only for clear error. And those were the factual findings at issue here. The district court found that Joneca’s “input-based interpretation d[id] not seem reasonable.” When a court construes “technical words or phrases” by reference to “extrinsic evidence” about usage, that “factual determination, like all other factual determinations, must be reviewed for clear error.”

Joneca argued, nonetheless, that input horsepower “more closely correlates to the performance of the entire waste disposer system” as it would be used by a consumer. But that wasn’t clear error. “The district court considered battling expert opinions speaking to these questions alongside a wide range of supporting resources, including industry resources and a national retailer’s website.” (The district court also found particularly persuasive correspondence from UL engineers that “UL 430 is a safety standard for Waste Disposers and is not meant to be used to determine the horsepower ratings of Waste Disposers.” This might be hearsay, but hearsay can be considered on a preliminary injunction.)

It was not clear error to find that the horsepower claims weren’t ambiguous in context. The district court found Joneca’s proposed interpretation implausible, “explaining that UL engineers themselves refuted Joneca’s use of UL 430, its sole supporting reference.” Joneca argued that the consensus among engineers, or industry usage, wasn’t relevant, but the district court did consider the audience when it found that “Joneca had no support for its interpretation other than an inapplicable and non-consumer-facing safety standard.” Meanwhile, the materiality evidence supported the finding of literal falsity to consumers, including explanations from a national retailer’s website that “[g]arbage disposal horsepower (HP) determines what the disposal is capable of grinding” and evidence from yet another national retailer’s website discussing that “higher . . . HP” would mean “[f]ood waste will be ground into finer particles.” Thus, it was not clear error to find that Joneca’s horsepower claims referred to output horsepower by necessary implication.

Was that literally false? Joneca argued that its claims were not sufficiently unsubstantiated to meet the standard for literal falsity, because a literal falsehood has to be “bald-faced, egregious, undeniable, over the top,” or “completely unsubstantiated.” But those quotes came from discussions of “per se” falsity, as opposed to discussions of literal falsity that were “proved by evidence.” The latter category can also be literally false, and involves considerations of context and audience. (The Seventh Circuit’s “bald-faced” language is an invitation to err, and raises considerations probably better dealt with as materiality issues.) “At least when literal falsity is shown by evidence, a complete lack of substantiation for the opposing position—or absence of ‘conflicting evidence,’ as Joneca puts it—is not required.”

Materiality: The district court found that horsepower was “an inherent part of” garbage disposals because of “the importance of horsepower to the quality and characteristics of a garbage disposal.” In addition, InSinkErator’s “market research” showed that “consumers ranked horsepower as one of the top purchasing considerations for garbage disposals,” and retailers organized disposals by horsepower in shelving those products, which “signals that horsepower is an important—if not primary—distinction used by retailers to market [disposals] to consumers.” Retailer websites also expressly link horsepower to the effectiveness of disposal units, e.g., “[t]he higher the HP, the better the disposal will run.”

The court of appeals didn’t have to rule on whether the Second Circuit’s “inherent characteristic” language was appropriate; it rejected Joneca’s request for a requirement of “direct evidence showing how consumers would likely react to the alleged deception”—“like surveys and consumer declarations”—to show that a deception is material. To the contrary, “[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” There was no clear error in finding materiality.

Joneca argued that it submitted evidence that “consumers prefer Joneca’s disposers because of their better performance.” But the quoted customer reviews “primarily discuss how ‘powerful’ Joneca’s units are, indicating that consumers do care about power.” It didn’t matter that consumers were satisfied with their Joneca units; that didn’t show that they didn’t care about horsepower when choosing a disposal. In particular, “[b]ecause retailers display disposals to consumers by horsepower level, it was reasonable for the district court to infer that a false claim about a disposal’s horsepower—i.e., a horsepower claim that causes a disposal that lacks even the horsepower to qualify as Medium Duty to be displayed in the Heavy Duty section—would materially affect whether and how consumers would compare the unit to competing products.”

Injury: The court of appeals noted with approval the Second Circuit’s statement that “in many cases the evidence and the findings by the court that a plaintiff has been injured or is likely to suffer injury will satisfy the materiality standard—especially where the defendant and plaintiff are competitors in the same market and the falsity of the defendant’s advertising is likely to lead consumers to prefer the defendant’s product over the plaintiff’s.” The district court found that “horsepower—and thereby falsehood—is prominently displayed at the point-of-sale in retail shops” and reasoned that “horsepower is commonly used to differentiate garbage disposals.” It was not error to find that, when “a false statement is prominently displayed on a direct competitor’s product, and sold side-by-side at the same retailer as if to compare products and value, there is a real likelihood” of “diverted sales or diminished goodwill.”

The district court should have presumed irreparable injury from likely success on the merits, but its error didn’t help Joneca. That court independently found likely irreparable injury, which was not clearly erroneous. It apparently credited InSinkErator’s account that a retailer had awarded shelf space to Joneca instead of InSinkErator and that Joneca’s “fake value proposition” of inflated horsepower at a low price would influence bidding that was in process for “private label contracts with major retailers.” But, even if Joneca’s story had more details than InSinkErator’s, it wasn’t clear error to side with the latter.