“To prevail on a Lanham Act false advertising claim, a plaintiff must establish that the challenged message is (1) either literally or impliedly false, (2) material, (3) placed in interstate commerce, and (4) the cause of actual or likely injury to the plaintiff.” Church & Dwight Co. v. SPD Swiss Precision Diagnostics, GmbH, 843 F.3d 48, 65 (2d Cir. 2016). If the challenged statement is not literally false, a plaintiff may show that the statement is likely to mislead or confuse consumers. Johnson & Johnson * Merck Consumer Pharms. Co. v. Smithkline Beecham Corp., 960 F.2d 294, 297 (2d Cir. 1992). 

FB Select ("FBS"), the exclusive distributor of Klaire Labs Brand supplements on Amazon, sued Ocean Blue, an unauthorized seller of those products, under the Lanham Act for false advertising. FB Select, LLC v. Ocean Blue Trading, LLC, No. 24-cv-8425 (PKC), 2025 WL 2172653 (S.D.N.Y. Jul. 31, 2025). FBS alleged that Ocean Blue “willfully resell[s] illegally and fraudulently sourced Klaire Products on Amazon without any authorization from SFI.” But FBS did not allege that any statement of Ocean Blue was literally false because it did not challenge any particular statement about the product or its origins. Instead, it argued that the act of selling the product on Amazon was an impliedly false statement because it failed to affirmatively disclose that Ocean Blue had acquired the product from authorized sellers of the product who did not have the contractual right to resell it to Ocean Blue. 

But Ocean Blue's act of selling the product on Amazon did not impliedly represent anything about the identity of the party selling the product to Ocean Blue or of that seller's contractual responsibilities to the manufacturer of the supplements. Because there was no allegation that a misleading statement had been made to consumers by Ocean Blue because it omitted material information, there was no false statement to consumers, literal or implied. See Register.Com, Inc. v. Domain Registry of America., Inc., 02 cv.6915 (NRB), 2002 WL 31894625, at *14 (S.D.N.Y. Dec. 27, 2002) (“According to the leading treatise on trademarks and unfair competition law, ‘a failure to disclose facts is not actionable under [Lanham Act Section] 43(a),' unless the failure is relevant to an affirmative statement that is made false or misleading by its omission. McCarthy § 27:13.”). 

While FSB's allegations that “[t]he only plausible way Defendants could be obtaining the volume of products they are reselling is by purchasing them from one or more Authorized Sellers” was not enough to establish false advertising, the court invited further briefing on whether the court should consider supplemental jurisdiction over claims of tortious interference with contracts, business relations and prospective economic advantages under state law based on those same facts. This was because a district court may decline to exercise supplemental jurisdiction if it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3); see also Kolari v. New York-Presbyterian Hospital, 455 F.3d 118, 122 (2d Cir. 2006). “Once a district court's discretion is triggered under § 1367(c)(3), it balances the traditional ‘values of judicial economy, convenience, fairness, and comity,' . . . in deciding whether to exercise jurisdiction.” Kolari, 455 F.3d at 122 (quoting Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988)). “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.” Id. (quoting Cohill, 484 U.S. at 350 n.7). 

Professor Rebecca Tushnet noted that "[f]inding cases where TM and false advertising law give different outputs on the same facts because of lack of harm/materiality/falsity" was her "niche!"