To prove false advertising under the Lanham Act violation, a plaintiff must establish: (1) a false statement of fact was made by the defendant in a commercial advertisement about its own or another's product; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material, in that it is likely to influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to defendant or by a lessening of the goodwill associated with its products. Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997). 

To demonstrate “falsity,” a plaintiff can either: (1) “show that the statement was literally false, either on its face or by necessary implication,” or (2) “that the statement was literally true but likely to mislead or confuse consumers.” Id. (citing Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 946 (9th Cir. 1993). 

The Ninth Circuit has held that representations can constitute commercial advertising or promotion under the Lanham Act if they are: commercial speech by a competitor for the purpose of influencing consumers to buy defendant's goods or services. Coastal Abstract Serv. Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999). While the representations need not be made in a “classic advertising campaign,” but may consist instead of more informal types of “promotion,” the representations must be disseminated sufficiently to the relevant purchasing public to constitute “advertising” or “promotion” within that industry. Id.

“[T]he Lanham Act encompasses more than blatant falsehoods. It embraces innuendo, indirect intimations, and ambiguous suggestions evidenced by the consuming public's misapprehension of the hard facts underlying an advertisement.” William H. Morris Co. v. Grp. W, Inc., 66 F.3d 255, 257–58 (9th Cir. 1995), supplemented sub nom., William H. Morris Co. v. Grp. W. Inc., 67 F.3d 310 (9th Cir. 1995) (quoting Vidal Sassoon, Inc. v. Bristol-Myers Co., 661 F.2d 272, 277 (2nd Cir. 1981) (internal quotation omitted).

Recently, in V Shred, LLC v. Kramer, 2026 WL 895614, No. 2:25-cv-01341-CDS-DJA (D. Nev. Apr. 1, 2026), V Shred sued Kramer, a social media influencer who allegedly uses the catch phrase “Fuck V Shred” on his social media profiles as “a discount code consumers can use” for products promoted by Kramer.

Kramer had stated that V Shred has “1,200 or 1,300 complaints filed with the Better Business Bureau this past year alone”; but argued that his claims about the BBB complaints were an estimate “based on memory.” The court, however, found that the statement could be false; and because he allegedly promoted his own products instead, it could be a commercial advertisement. In a footnote, the court found “Kramer's argument that the statement was ‘an estimate based on memory' is essentially an admission that the BBB statements were indeed demonstrably false.” 

In addition, Kramer stated in a YouTube video: “Allegedly they [V Shred] only pay their coaches $9 per client.” V Shred asserted that this statement was false “because they pay their coaches different amounts for different types of plans.” Kramer argued that this was not false advertising because the statement was prefaced with the qualifier “allegedly.” But “Kramer offer[ed] no authority supporting his position that his ‘allegedly' qualifying statement, without more, is sufficient to warrant dismissal at the pleading stage.” The court also found that the video constituted an advertisement because Kramer appears in branded apparel and “spends 58 of the 93-second video criticizing V Shred before promoting his own company and attempting to recruit customers” in direct competition with V Shred while claiming he will pay his coaches “double the market standard.” 

On the other hand, a TikTok video that Kramer had titled “Mini Golf with V Shred in Las Vegas” did not state a false advertising claim because the court found that a tagline reference to V Shred was not a plausible “leap” to promoting competing products where “there were no products offered for sale and V Shred was not even discussed in the video.” The court distinguished Upper Deck Co. v. Panini Am., Inc., 469 F. Supp. 3d 963, 976 (S.D. Cal. 2020) as involving the unauthorized use of Michael Jordon, and Veve v. Corporan, 977 F. Supp. 2d 93 (D.P.R. 2013) as dealing with the unauthorized use of an image of the plaintiff's property in an advertisement.