CA6 interprets literal falsity narrowly but says materiality implements the standing requirement, yay

Victory Global, LLC v. Fresh Bourbon, LLC, --- F.4th ----, 2026 WL 836221, No. 25-5173 (6^th Cir. Mar. 26, 2026)

Lower court decision discussed here.

Victory Global, d/b/a Brough Brothers claims to have become the “first” African American-owned company to distill bourbon when it opened its physical distillery in 2020. But Fresh Bourbon counters that it was the “first” because its owners physically distilled their brand at another company’s distillery two years earlier. Brough Brothers sued for Lanham Act false advertising, but failed to identify any unambiguously false statements or evidence of deception. The court of appeals affirmed the grant of summary judgment to Fresh Bourbon.

Brough Brothers sold their its batch of bourbon under the Brough Brothers label in 2020. The bottles truthfully disclosed that they were distilled in Indiana. On New Year’s Eve in 2020, they distilled their first bourbon in Kentucky.

Fresh Bourbon distilled using another distillery’s space starting in 2018; eventually, Fresh Bourbon’s employees knew what they were doing and got “free reign” [sigh] of the Hartfield distillery. It first sold its bourbon made at Hartfield in 2020, using Hartfield’s federal license to sell to distributors. The label stated: “Distilled and Bottled by Buchanan Griggs Inc. Paris, Kentucky For Fresh Bourbon Distilling Company[.]” Fresh Bourbon owned the recipe for this bourbon, and Hartfield agreed not to make it for others. Eventually, Fresh Bourbon opened its own distillery and distilled its first batch either in late 2022 or in early 2023.

“Given that Brough Brothers and Fresh Bourbon developed side by side, various sources have made different claims about who came first.”

“If a defendant makes a literally false statement, the defendant can identify no possible framing in which one could consider the statement true.” [This is an overstatement—we can always imagine secret definitions that make a statement true.]  By contrast, a misleading statement “requires a reader to engage in some mental processing to determine its truth or falsity.” [Also wrong: the whole point of falsity/misleadingness is that the reader does not know the truth by way of the statement. A misleading statement requires some inference that leads the reader to a false conclusion; the mental processing is the process of determining what the statement is saying.] “If, for example, an ambiguous statement is true under one interpretation but false under another, the statement qualifies as potentially misleading (not literally false). The same rule covers a technically true statement that lacks important details.”

The court noted that other circuits have split over whether the false/misleading line matters to materiality. Now here’s a line I like a lot: Materiality “implements the statutory causation requirement because a business is not ‘likely to be damaged’ from a claim that will not affect a consumer’s decision on which product to buy.” The court declined to weigh in on the split here (correctly recognizing that the Fifth Circuit had mistakenly cited it as already having resolved the issue; indeed, the Fifth Circuit cited its misunderstanding of other courts’ holdings as the reason it adopted a separate-evidence-for-materiality requirement; the split emerged from a game of Telephone).

Anyway, Brough Brothers bet it all on literal falsity. But none of the categories of challenged statements met the “high” bar for literal falsity.

First: The first to African Americans to “distill,” “produce,” or “develop” Kentucky bourbon since the Civil War. For example, Fresh Bourbon’s profile on X called the company’s bourbon the “first ... developed grain to glass by African Americans in the state of Kentucky.”

Brough Brothers’ expert conceded that it was “impossible to verify” whether other African American distilleries existed before these two companies because of the history of ignoring Black history. “At least with respect to other bourbon makers, then, Fresh Bourbon’s statements are not ‘verifiable’ as false on this record.” So the alleged falsity was the message that Fresh Bourbon made bourbon at its Lexington distillery before Brough Brothers made bourbon at its Louisville distillery, when the truth was that Brough Brothers obtained its distilling licenses and made its first batch of bourbon at its own distillery in December 2020 before Fresh Bourbon completed the same tasks years later. “If, then, the challenged statements unambiguously suggested that Fresh Bourbon opened its physical location before Brough Brothers, they would likely be literally false.” 

But there was another “reasonable” reading [applying the correct standard rather than the “any reading” standard]: “that Fresh Bourbon’s agents made its Kentucky bourbon first—no matter the physical distillery at which it did so.” And that was true. Fresh Bourbon’s founders participated in the distilling process at the Hartfield distillery starting in 2018. During this time, Brough Brothers sourced their bourbon from Indiana and did not help this producer in the distilling process. Under these circumstances, there was ambiguity.

Brough Brothers argued that a party does not “distill,” “produce,” or “develop” bourbon unless the party obtains licenses to open a distillery.

But this technical claim has no place in the “literally false” calculus—which requires a “bald-faced” lie. Fresh Bourbon’s use of these verbs does not meet that high standard. In ordinary language, one would naturally say that a party distilled or produced bourbon when the party put the raw materials into a still and took the other steps necessary to create the alcoholic beverage at the end.… These verbs also would remain accurate even if the party lacked a license.

The legality claim thus “conflicts with the ordinary understanding of the words.” And the facts showed that Fresh Bourbon’s team did more than buy bourbon on Hartfield’s license; they physically participated in the distilling.

Second: “[C]onsidered to be the first black-owned distillery in Kentucky.” This phrase came from the Kentucky Senate’s resolution praising Fresh Bourbon in February 2020, to which Fresh Bourbon’s website links. Brough Brothers argued that it opened its Louisville distillery before Fresh Bourbon opened its Lexington one, making this literally false.

But there was no evidence that Fresh Bourbon itself ever claimed to have opened the first African American-owned distillery in Kentucky. That the Kentucky Senate “considered” it to be the first, even if misleading, wasn’t literally false. Also, “distillery” could mean different things in different contexts. Although both dictionaries and Kentucky law define the term as meaning a place where distilled spirits are made, “consumers do not necessarily flip open a dictionary or check statutes when evaluating products.” And Fresh Bourbon introduced evidence that companies often call themselves a “distillery” even when they are “having a spirit bottled for” them by others. Brough Brothers itself registered the name “Brough Brothers Distillery” in 2018—years before it opened its physical location. The resolution itself suggested that this was how the Kentucky Senate used the term, because it stated elsewhere that Fresh Bourbon had “announced that they plan to build” a physical distillery in Lexington. “[I]t would have made little sense for the resolution to refer to Fresh Bourbon’s (unconstructed) venue as the first.” Under the understanding of “distillery” that means a company that sells bourbon, Fresh Bourbon sold Kentucky-made bourbon while Brough Brothers still sold Indiana-made bourbon, so that was true.

Brough Brothers argued that Fresh Bourbon drafted the resolution and was thus responsible for it, but the Senate didn’t use the language that they drafted, which didn’t include the challenged statement. Thus the court didn’t resolve the question of whether a state Senate resolution could be attributed to a private party for Lanham Act purposes.

Likewise with other claims; the Senate resolution also said that Fresh Bourbon “produces bourbon in the state of Kentucky with an African American Master Distiller, the first in Kentucky since slavery[.]” Brough Brothers argued that this statement was literally false because the putative master distiller lacked the qualifications: “20+ years of experience operating a distillery,” according to its expert. The putative master distiller “worked full time at a bank and merely had an interest in bourbon as a hobby before he took the job with Fresh Bourbon.” But the record showed that whether a producer qualifies as a “master distiller” was opinion not fact; as one witness said, the term is “more of a symbol” that some distillers coined in their marketing to become “rock stars with the bourbon people.” He testified that there is “no set experience level” or “no set anything” for that matter; the claim that a master distiller must have 20 years’ experience would disqualify Brough Brothers’ own master distiller. Brough Brothers’ expert conceded that it “[b]asically” boils down to “a matter of opinion,” which is fatal to a Lanham Act claim.

The court also declined to hold that these statements added up to falsity by necessary implication. Unfortunately casting doubt on whether the circuit actually recognized the doctrine, it understandably refused to “combine statements from different sources into one ‘overall marketing scheme.’” Context is vital, but “we have never treated every advertisement that a business has ever made as the relevant ‘context.’” Even considered together, however, the challenged statements were still ambiguous.

Cal. anti-SLAPP law protects trailer for show that allegedly promised more fight than it delivered

Camper v. Paramount Global, 2026 WL 836249, No. B339150 (Cal. Ct. App. Mar. 26, 2026)

Camper “viewed a trailer for the reality television show College Hill: Celebrity Edition, which referenced, but did not show, a physical altercation between two cast members.” Camper alleged that he was misled by the trailer and other promotional materials to believe the show would include the full altercation and therefore paid for a subscription to the online streaming service BET Plus. When the show did not include any additional footage of the altercation, he sued for false advertising and related claims.

The trial court granted Paramount’s anti-SLAPP motion to strike.

Camper alleged that the trailer showed an argument between two of the show’s stars about racial identity, then showed one getting up to confront the other, then cut to other cast members yelling. Based on the trailer, “media interviews regarding the season, and a circulated screenshot of a physical fight released by” respondents, Camper allegedly bought a subscription to BET Plus so he could watch College Hill. At the moment of the fight, the show displayed the following message, “Out of respect for all parties involved, we have chosen not to show this fight.”

Paramount denied releasing the screenshot presented by Camper, or “any other screenshot depicting a physical altercation” between the cast members, “as part of an official marketing campaign or for any other purpose.” It also argued that it did not exercise any control over the interview given by a cast during which she discussed the fight, since by the time the interview was recorded, she had been expelled from college and had left the cast of College Hill.

The trial court concluded that the television program and associated promotional activities constituted protected speech in connection with an issue of public interest, as the episode involved “discussions of issues regarding race and racial identity, and the physical fight that is at the center of [Camper’s] claim arose out of a dispute on that topic.” Camper’s claims under the UCL, FAL, and CLRA failed because he could not establish that “it is probable that a significant portion of the general consuming public or targeted consumers could be misled by the trailer.” The court found that the physical altercation “was depicted in the episode, with a level of graphic detail that was greater than that in the trailer,” including that it showed an “opening swing” by one cast member, followed by “an extended segment of violent and disturbing audio that leaves no doubt that a physical fight is occurring,” as well as “audio of other classmates’ reactions during and after the event.” The trial court found that the scene “is much more dramatic than what is shown in the trailer, and nothing that is in the trailer is left out of the scene.” The court further noted that “there is nothing in the trailer that indicates how the fight would actually be depicted in the episode.”  

The court of appeals agreed. Camper argued that the trial court should have applied an exception for commercial speech, but the anti-SLAPP law carves out an exception from the commercial speech exception when an action is “based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including, but not limited to, a motion picture or television program.”

Camper had no evidence that a significant portion of reasonable consumers viewing the College Hill trailer could be misled to believe that the show would include additional footage of the physical fight. Declarations from Camper and one other viewer regarding their expectations were insufficient, especially since all of the footage in the trailer related to the fight was shown during the episode, as well as audio recordings capturing the fight and onlookers’ reactions to it. (Nor did he show causation given that he subscribed before the cast member interview.)

abortion clinic can proceed with false advertising claims against for-profit ad agency and (in part) the anti-abortion "center" it touted

Four Women Health Servs., LLC v. Abundant Hope Pregnancy Resource Center, Inc., No. 1:24-cv-12283-JEK, 2026 WL 836424 (D. Mass. Mar. 26, 2026)

Four Women is a licensed healthcare clinic that provides reproductive healthcare, including abortion care, to its patients. Abundant Hope is a “nonprofit crisis pregnancy center” that opposes abortion operating in a neighboring building. Four Women sued for state and federal false advertising; the court dismissed the Massachusetts Chapter 93A claim against Abundant Hope but denied dismissal as to the Lanham Act claim. Four Women also stated a plausible Chapter 93A claim against CLM, “a for-profit entity paid by Abundant Hope to make allegedly misleading advertisements about the services provided at the Attleboro Women’s Health Center.” The other defendants weren’t reachable under Chapter 93A because “Abundant Hope is a nonprofit that did not charge for its services, which advanced its pro-life mission, and its officers furthered that charitable mission.”

In 2018, Abundant Hope relocated next door to Four Women and put the name “Attleboro Women’s Health Center,” or “AWHC” for short, on its office. AWHC purports to furnish patients with free medical services, including ultrasounds and pregnancy consultation, testing, and diagnoses, but “is not a separate corporate entity from Abundant Hope, nor is it a licensed medical provider.”

Abundant Hope hired CLM, a for-profit marketing agency in Missouri, to manage that website and place advertisements on Google promoting AWHC to women seeking abortion care. Abundant Hope approved the language drafted by CLM. CLM also provides Abundant Hope with the contact information of potential clients and describes the services that they are seeking based on forms that those “leads” completed on AWHC’s website or elsewhere.

The alleged falsities: On its website and in Google advertisements, AWHC is advertised as a “Women’s Health Center” that has performed hundreds of “medical” tests and appointments and that can furnish “medical services,” including pregnancy testing and ultrasounds. But AWHC does not employ an on-site licensed doctor or Advanced Practice Registered Nurse, and state law requires such licensed medical professionals to diagnose the viability and location of a fetus.

AWHC also allegedly encourages women to access its services by falsely representing on its website that an ultrasound and a determination regarding viability are necessary to obtain an abortion.

AWHC’s website misrepresents that AWHC provides abortion care by listing “abortion” first in the “Options” page and, on the “Abortion” page, urging women who are “thinking about abortion” to “MAKE AN APPOINTMENT.” The website also includes a client testimonial describing AWHC as a “[g]reat place for women considering abortion.” While other pages on AWHC’s website include a small disclaimer at the bottom that AWHC does not perform abortions, these pages and its other advertising contain no such disclosure. Google advertising further implies that AWHC performs abortions because AWHC appears among the first Google search results for “abortion near me attleboro ma,” with an advertisement for scheduling an appointment and links to “Abortion Cost,” “Abortion Pill Info,” “Abortion Clinic Info,” and “Abortion Info.”

Four Women alleged diversion: Between January 2023 and August 2024, 591 patients called both AWHC and Four Women. Many women “unknowingly provided their contact information to Abundant Hope through AWHC’s website or CLM’s Google advertising,” and AWHC allegedly schedules appointments with callers without informing them that it does not furnish abortion care and, once on-site, offers them pamphlets falsely stating that abortion is “dangerous” in order to deter them from going to Four Women.

Chapter 93A prohibits “an unfair or deceptive act or practice” between those “engage[d] in the conduct of any trade or commerce.” Abundant Hope and its officers weren’t engaged in “trade or commerce,” which the law defines, in relevant part, to “include the advertising, the offering for sale, rent or lease, the sale, rent, lease or distribution of any services.” This language “indicates an intent that the services be distributed in exchange for some consideration or that there must be other strong indications that the services are distributed in a business context.”

Using a for-profit marketing agency didn’t change that calculus; “[i]n most circumstances, a charitable institution will not be engaged in trade or commerce when it undertakes activities in furtherance of its core mission.”

However, defendant CLM was a for-profit entity that has been paid “substantial sums” by Abundant Hope to advertise AWHC’s services. “CLM is therefore operating in a business context by receiving payment for its advertising services, and its activities fall squarely within the definition of ‘trade or commerce’ under Chapter 93A.” It wasn’t immunized just because its profit-making activities could be said to further the core mission of a nonprofit organization.

CLM also argued that, since Abundant Hope couldn’t be held liable under Chapter 93A, it couldn’t be held liable for what was essentially aiding and abetting. “But under Massachusetts law, one entity’s participation in another’s tortious conduct can lead to liability under Chapter 93A, even if the other entity is not subject to Chapter 93A liability.”

And its conduct in advertising/running the website was plausibly misleading, even if everything it produced was literally true. It was also plausible that the deception injured Four Women by diverting patients. Four Women alleged multiple specific instances in which women sought abortion care at Four Women but, as a result of confusion, ended up at AWHC.

Lanham Act: Why a different result for Abundant Hope on “commercial advertising or promotion”? The complaint adequately alleged that the defendants had an economic motive and thus engaged in commercial speech. Even though Abundant Hope is a nonprofit organization that provides free services at AWHC, “as a for-profit business, CLM has a clear economic incentive and is paid to promote AWHC’s services.” Nor was AWHC’s provision of free services and its status as a nonprofit organization dispositive. A nonprofit organization’s promotional advertising of services can directly relate to its “ability to fundraise and, in turn, to buy more advertisements.”

Abundant Hope’s paid promotion of its services included $38,846, or nearly 17% of its total functional expenses, in 2022 alone. And Abundant Hope “promotes its diversion of patients from Four Women and AWHC’s provision of free services in its fundraising.” Because Abundant Hope “has a direct economic stake in the provision of its ... service[s]” and advertises those services “in the hopes of realizing an economic gain” through fundraising “rather than merely informing the public or pursuing its ideological views, it may reasonably be viewed as economically motivated.”  

Four Women also adequately alleged that the defendants’ representations were made with the intent of influencing potential customers to purchase the services offered at AWHC; “purchase” here doesn’t require an exchange of money. [Probably more to the point, the word “purchase” in the Gordon & Breach test isn’t part of the statute, and we should be reasoning about what “commercial advertising or promotion” means rather than what a word from Gordon & Breach means.] And [although Lexmark should have abrogated this element], the complaint plausibly alleged commercial competition in the market for reproductive health care.

Materiality: Defendants admitted that AWHC is not “a licensed medical provider” or “facility” and “has never been licensed by the Massachusetts Department of Public Health to provide medical care,” but  they identify AWHC as Abundant Hope’s “medical” arm that furnishes “medical” services; promote AWHC as providing “medical appointments and medical tests” on its website; and advertise elsewhere, including on Abundant Hope’s website, that AWHC provides “medical” services to women, including pregnancy testing and ultrasounds. “These statements give the mistaken impression that AWHC is a medical provider that lawfully performs the identified medical procedures.” Likewise, misleadingly suggesting that an ultrasound and a determination regarding viability are necessary preconditions to obtaining an abortion, and misleadingly suggesting that AWHC provides abortion care, were plausibly material for the same reasons they were plausibly misleading. The complaint also provided examples of actually deceived consumers, giving rise to an inference of materiality.

First Amendment: Four Women’s claims do not target any speech the defendants wish to make, or have made, about their pro-life viewpoint or any of their views about the propriety of abortion. Rather, the claims are narrowly addressed to AWHC’s advertisements and website content that, as alleged, contain false or misleading information and divert women seeking abortion care from Four Women. Where, as here, a plaintiff plausibly alleges that the defendant engaged in commercial speech through false or misleading advertisements, the First Amendment does not provide refuge from claims under the Lanham Act or Chapter 93A.

Cases like NIFLA weren’t apposite, because Four Women wasn’t a government actor and it was challenging only false or misleading advertising, not seeking to compel speech. [Yeah, good luck with that on appeal.]

challenge to whether certification agency did its job can't be used to disprove an establishment claim

McKeon Rolling Steel Door Co. v. U.S. Smoke & Fire Corp., 2026 WL 865699, 1:23-cv-8720 (ALC) (S.D.N.Y. Mar. 30, 2026)

McKeon sued defendants for false advertising under NY and federal law. I’m ignoring the trade secret counterclaim.

McKeon and USS&F compete in the market for commercial and special purpose safety assemblies, focusing here on fire shutters that close openings in buildings and block the passage of flames and gas in the event of a fire. Fire shutters are installed in public buildings, including hospitals, schools, and airports; they descend from ceilings if there is a fire. Building codes throughout the United States require that fire shutters be tested and certified by UL 10B Standard for Safety.

Defendant Guardian tests products, sometimes with third-party help; once it deems a product certified, it posts that to its website. Once the products at issue were deemed “certified” by Guardian, defendant USS&F posted the certification information on its publicly accessible website.

They argued that the statements were literally true because USSF’s products were tested by a third party, a certified testing agency; the tests were witnessed by Guardian, and Guardian issued certifications that the products were UL 10B certified.

McKeon argued that, even though the products stated they were UL 10B certified, they were not properly certified. McKeon had obtained what defendants deem “confidential test reports” and interpreted the results to determine whether the products should have been certified to UL 10B standard. McKeon argued that it was bringing an establishment claim, by which it sought to prove that “the Test Reports do not support the proposition for which they were cited; namely, that the subject Products meet the UL 10B certification requirements.”

The court found summary judgment appropriate, because this wasn’t a case where the claim was “tests prove X,” but rather “this product is accredited by a third party.” And that was true. The court found that cases allowing challenges to the reliability of claim-supportive testing were about protecting consumers against unfounded superiority claims. Here, there was no superiority claim, so there could be no establishment claim. [This distinction seems wrong to me, even if summary judgment is correct on these facts. Certainly statements that “tests prove” a monadic claim (e.g., treats headaches) or an equivalence claim (as good as) should also be able to be falsified.]

Instead, the court looked to Board.-Tech Elec. Co. v. Eaton Corp., 737 F. App’x 556 (2d Cir. 2018), which rejected a challenge to whether a competitor’s light switches should have actually been certified by the UL. “Without any indication that UL decertified the defendant’s product—or (perhaps) that the defendant’s product had materially changed since certification—there would be no plausible allegation of a false statement.” Here, McKeon conceded that it didn’t have a certifier re-test the products at issue, or provide evidence from a testing agency that the products didn’t meet the standard, or provide evidence that there was in fact no accreditation. Thus, the statements were literally true.