Tenth Circuit Holds That Published Scientific Studies Are Inactionable Opinion In A Lanham Act False Advertising Case, But Company’s Promotional Use Of The Studies May Be Actionable
08/04/2026
In KetoNatural Pet Foods, Inc. v. Hill’s Pet Nutritional, Inc., __ 4th Cir. __, No. 24-3185, 2026 WL 2024498 (10th Cir. July 14, 2026), the Tenth Circuit reversed in part the District Court’s dismissal of plaintiff’s Lanham Act false advertising complaint, holding that defendant’s advertising and promotion based on published studies were actionable as plausibly false “establishment” claims, while agreeing with the District Court that third parties’ publication and reliance on the articles were not. The case reflects a further, albeit nuanced, adoption of the seminal holding in ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490, 498 (2d Cir. 2013), that scientific conclusions drawn in non-fraudulent published studies constitute inactionable opinions rather than potentially false statements of fact.
