The Lanham Act prohibits “false or misleading representation[s] of fact” made “in commercial advertising or promotion.” 15 U.S.C. § 1125(a)(1). This requires showing (1) material false or misleading representations of fact in connection with the commercial advertising or promotion of a product; (2) in commerce; (3) that are either likely to  cause confusion or mistake as to (a) the origin, association or approval of the product with or by another, or (b) the characteristics of the goods or services; and (4) injure the plaintiff.” Sally Beauty Co., Inc. v. Beautyco, Inc., 304 F.3d 964, 980 (10th Cir. 2002). 

A false representation is “(1) commercial speech; (2) by a defendant who is in commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy defendant's goods or services . . . . [and it] (4) must be disseminated sufficiently to the relevant purchasing public to constitute advertising or promotion within that industry.” Proctor & Gamble Co. v. Haugen, 222 F.3d 1262, 1273–74 (10th Cir. 2000) (citation modified); see also Podiatrist Ass'n, Inc. v. La Cruz Azul De Puerto Rico, Inc., 332 F.3d 6, 19 (1st Cir. 2003); Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1384 (5th Cir. 1996); Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999); Suntree Techs., Inc. v. Ecosense Int'l, Inc., 693 F.3d 1338, 1349 (11th Cir. 2012); Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 57–58 (2d Cir. 2002) (adopting elements one, three, and four). 

To demonstrate that a representation is false or misleading, the plaintiff must show that the representation is “literally false, either on its face or by necessary implication,” or that it is “literally true but likely to mislead or confuse customers.” Vitamins Online, Inc. v. Heartwise, Inc., 71 F.4th 1222, 1235 (10th Cir. 2023) (citation omitted). To be literally false, a statement must be unambiguous. I Dig Texas, LLC v. Creager, 98 F.4th 998, 1009 (10th Cir. 2024). A literally false “claim is conveyed by necessary implication when, considering the advertisement in its entirety, the audience would recognize the claim as readily as if it had been explicitly stated.” Clorox Co. P.R. v. Proctor & Gamble Com. Co., 228 F.3d 24, 35 (1st Cir. 2000)).

When a statement claims it is established by scientific testing or otherwise backed up by scientific data, the issue is whether the scientific tests establish the proposition for which they were cited, or that they were not sufficiently reliable to permit the conclusion for which they were cited. Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 63 (2d Cir. 1992); see also Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1309 (11th Cir. 2010). This is often referred to as the “establishment claim doctrine.”  

In KetoNatural Pet Foods, Inc. v. Hill’s Pet Nutrition, Inc., No. 24-3185, __ F.4th __ (10th Cir. Jul. 14, 2026), the Tenth Circuit found that statements by Hill's that grain-free pet food (like KetoNatural's) were linked to a higher risk of canine heart disease were plausibly false advertising, but not the statements from veterinarians and non-profits allegedly affiliated with Hill's.

... Hill's offers free continuing-education courses and literature to veterinarians and has partnered with veterinarian researchers to support its marketing. In return, Hill's provides partner veterinarians with financial support and promotes their work through its website. Hill's also funds research at various veterinary schools where partner veterinarians are located.

Hill's also maintains connections to the larger veterinary world by funding two non-profits that promote animal welfare. 

KetoNatural sells non-traditional pet food—called “BEG” pet food—are those that are produced by small “boutique” companies, made from “exotic” ingredients, or are “grain-free.” And KetoNatural alleged that Hill's conspired with several veterinarians and two ostensibly independent non-profits to publicize the connection between non-traditional grain-free diets and dilated cardiomyopathy, a deadly canine heart disease. In particular, Hill's claimed on its website that non-traditional grain-free diets were connected to canine heart disease and linked to veterinarians' blog posts stating the same; and Hill's offered similar educational materials and continuing education courses to veterinarians on its website. KetoNatural also alleged that, [i]ndoctrinated by the conspiracy's educational efforts," unaffiliated veterinarians informed pet owners about the link to dilated cardiomyopathy, which causing them to stop purchasing BEG pet food.

Links to alleged co-conspirator vets' articles on Hill's website, claiming that BEG diets were dangerous, was not a “classic advertising campaign,” but the speech had an economic motivation and plausibly promoted Hill's grain-based pet food as safer for dogs, even without naming Hill's explicitly.

Hill's argued that purely educational and informational statements should not be treated as commercial speech, but the Tenth Circuit noted that "educational or informational speech can become commercial when disseminated to promote the purchase of goods." 

As some circuits have noted, economic motivation to sell products informs whether the speaker intended the speech to function as an advertisement. See, e.g., Ariix, 985 F.3d at 1116 (“While such social media posts may not have the indicia of a traditional advertisement, there can be little doubt that these paid posts are in fact advertisements.”); Amway, 242 F.3d at 552 (“Certainly the repetition of the rumor via [a telephone messaging system] was not an advertisement in the classic sense, but whether it could be considered as a negative advertisement against P&G seems to depend on . . . whether the speaker had an economic motivation for the speech.”).

   * * *

Hill's maintains a coveted spot in this market. It is one of three companies that dominate the traditional pet food market in the United States. As a result, its disparagement of non-traditional, BEG pet food is a tacit promotion of its own pet food. And the fact that the statements promote Hill's' brand, rather than a specific product, does not remove their commercial character. See, e.g., Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 518 (7th Cir. 2014) (“An advertisement is no less ‘commercial' because it promotes brand awareness or loyalty rather than explicitly proposing a transaction in a specific product or service.”). 

   * * *

Hill's contends that any disparaging statements on the linked webpages are not commercial speech because they make no mention of Hill's and its products. And analyzed alone, the speech on the linked webpages is not. But hyperlinks to the relevant webpages are embedded in Hill's' website. Because of the hyperlinks' location and the fact that the linked pages disparage BEG dog foods, the linked webpages can plausibly be understood to promote Hill's' products. See Tobinick, 848 F.3d at 951 (explaining that “a restaurant or movie review or a product report on its own is not commercial speech under the Lanham Act . . . but can be transformed into commercial speech when, for instance, a restaurant posts the review in its window” (citation modified)).

KetoNatural also plausibly alleged literal falsity under an establishment claim theory by necessary implication as a statement that experts such as vets would not make unless backed up by scientific evidence. For example, a statement that “[w]hat seems to be consistent is that [DCM] does appear to be more likely to occur in dogs eating boutique, grain-free, or exotic-ingredient diets” was an establishment claim “because it establishes a correlation between the diet and the disease by implicitly relying on some independent, objectively verifiable study showing consistent and higher rates of canine heart disease in BEG-eating dogs. And it is plausibly literally false because KetoNatural alleges that no study supports the correlation.”

But the statements by the vets and non-profits were not actionable as First-Amendment-protected statements on matters of public concern. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983) (differentiating between “core” and non-core commercial speech under the First Amendment).  

[T]he statements in the veterinarians' articles and blogs, without more, do not function to promote or advertise Hill's' products. . . . But unlike Hill's' statements, the veterinarians' statements are too attenuated from Hill's to reflect Bolger's remaining characteristics of non-core commercial speech. 

. . . The [statements in the] excerpts do not plausibly promote Hill's' brand because they are untethered from Hill's: Hill's is not the speaker, nor do the excerpts mention Hill's. The speaker matters. The speaker provides context to the consumer that the speech may be commercial. And unlike the unique market position of Hill's and that of the contraceptive manufacturer in Bolger, who both occupied “sufficient control of the market,” such that they “may be able to promote the product without reference to [their own] brand names,” the veterinarians do not occupy the same position. See Bolger, 463 U.S. at 66 n.13. No similar context bridges the inferential gap tying their speech disparaging BEG foods to speech promoting Hill's' products. See id.; see also Tobinick, 848 F.3d at 950–51 (concluding that defendant's articles criticizing plaintiff doctor's dubious medical treatments were not commercial speech in part because they did not mention defendant doctor's medical practice or services). 

Moreover, KetoNatural did not plausibly allege that the veterinarians made these statements with economic motivation or "in direct expectation of pecuniary gain from Hill's."

Also, receiving research funding from Hill's, either directly or indirectly through their universities, was not enough. There was no allegation that the research funding was contingent on the making those statements, or that the research funding depended on the topic or result of the research itself. 

For a court to infer that the veterinarians' speech was economically motivated, KetoNatural must at least plead facts that the veterinarians were compensated or otherwise received a quid pro quo from Hill's for their speaking and writing. But KetoNatural failed to do so. Simply put, the economic motive KetoNatural urges is too attenuated from Hill's and its products to render the veterinarians' speech commercial.

Furthermore, as a general matter, scientific articles do not include actionable commercial speech. See, e.g., Pacira BioSciences, Inc. v. Am. Soc'y of Anesthesiologists, Inc., 63 F.4th 240, 246–48 (3d Cir. 2023) (discussing that scientific conclusions are like opinions and thus not actionable speech); Conformis, Inc. v. Aetna, Inc., 58 F.4th 517, 534 (1st Cir. 2023) (recognizing the force of this principle). “[T]o the extent a speaker or author draws conclusions from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement, those statements are not grounds for a claim of false advertising under the Lanham Act.” ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490, 498 (2d Cir. 2013) (holding that scientific conclusions of this kind are non-actionable opinions). 

And merely funding the non-profit Foundations "cannot satisfy the quid pro quo necessary to successfully allege that Hill's' gains economically motivated the Foundation to make such statements." 

Thus, the Tenth Circuit affirmed that while Hill's' disparaging statements could be non-core commercial speech plausibly subject to false advertising claims, statements by affiliated veterinarians and non-profits were not.