Free Speech Win in Federal Court

Judges rule that excerpts from scientific/medical journal articles can be used in advertising and promotional materials, protected by the First Amendment and New York state law.
A three-judge panel of the Second US Circuit Court of Appeals in New York has ruled unanimously that researchers cannot be sued for stating the scientific conclusions made in journal articles about matters of scientific debate.
In this case, the manufacturer of a lung surfactant—a detergent-like agent that reduces the surface tension of the liquid film covering the inner lining of the lung’s small air sacs (alveoli) to help keep lungs from collapsing and help patients breathe better—brought a false advertising suit against a competitor. The lawsuit alleged that the competitor paid for research designed to show that the competitor’s product was superior; that the findings were false and deceptive; and that the competitor disseminated those findings through an article published in a scientific journal and through promotional material citing the article’s conclusions.
The plaintiff didn’t claim that the competitor distorted the article’s findings, but that the findings themselves were inaccurate, and by publishing them, the plaintiffs suffered damage. The main question was whether the defendant’s statements about the study were false and misleading under the Lanham Act, which is the primary federal trademark law in the US (the court also looked at this under NY state law). They didn’t consider the question of whether the study findings themselves were false—only whether their statements about the study were false or misleading. The panel ruled against the plaintiff and found that the defendant did not misrepresent the research findings, and ruled the defendant’s statements to be scientific “opinion,” not fact, and therefore protected speech under the First Amendment.
This sets a significant precedent. A federal appeals court found that opinions about scientific studies, at least when two private parties are involved in cases involving the Lanham Act, is protected free speech.
Whether this ruling can be applied against the Federal Trade Commission’s recent actions toward supplement makers for making alleged “false and misleading claims” by citing scientific studies remains to be seen, as the laws involved are different. You may recall the FTC’s lawsuits against companies such as POM Wonderful for false advertising, even though POM cited scientific articles and studies.
Increasingly, the FTC appears to be applying the FDA’s pharmaceutical approach toward all health claims, including those for food or supplements, via consent decrees, as we discussed last year. These consent decrees are requiring manufacturers to obtain the FDA’s approval of any health claims prior to making them in advertising, and are insisting on a standard of double random controlled studies. In effect, the FTC seems to be doing what the FDA itself would like to do but is barred from doing. It seems to be an end-run around FDA law.
Given this background of increasing government censorship of science, this latest court ruling is very welcome. Companies cannot afford the millions of dollars needed to take a natural, non-patentable product through the FDA drug approval process in order to establish health claims. However, there is a lot of valid scientific literature explaining benefits of natural products, and companies should be able to use it for advertising purposes to inform the public without threat of fines or even jail.
This is the logic behind our push for Free Speech About Science (FSAS). A bill to reintroduce the Free Speech About Science Act is currently being redrafted. We will keep you posted as things progress.