Civil Litigation,
9th U.S. Circuit Court of Appeals
Apr. 6, 2018
Back to basics: establishment claims in false advertising cases
Notwithstanding some unfortunate language in prior cases, there really is not any such burden-shifting doctrine associated with establishment claims.
August T. Horvath
Partner
Foley Hoag LLP
August is co-chair of the firms advertising and marketing practice in New York City.
The 9th U.S. Circuit Court of Appeals' decision last year in Kwan v. SanMedica Int'l, 854 F.3d 1088, has caused some uproar over whether the circuit has broken with the supposed "doctrine" in some advertising cases that when an advertiser makes an establishment claim -- i.e., a claim that evidence or proof exists, generally for some benefit it is touting about its product -- this "shifts the burden" to the advertiser to have to substantiate...
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