• 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.

  The parties compete in the U.S. market for pet food.  Defendant offers a traditional pet food that incorporates grain, while plaintiff markets a grain-free pet food. The complaint alleged that defendant’s advertising, which purportedly was based on published scientific articles, misleadingly attacked grain-free pet foods as unhealthy and associated with canine heart disease.  Plaintiff alleged defendant did so directly through its website and continuing education materials provided to veterinarians, as well as through third parties such as a network of veterinarians who allegedly repeated defendant’s disparaging claims, including through published articles and social media statements.

  Plaintiff sued for false advertising under the federal Lanham Act and for conspiracy under Kansas law.  The District Court dismissed, holding that the challenged statements were not commercial speech (necessary to satisfy the “advertising or promotion” element of a false advertising claim), and because plaintiff failed to allege facts showing that the challenged statements were literally false (that is, that grain-free pet foods are not associated with canine disease).  The Tenth Circuit reversed in part, holding that plaintiff’s allegations regarding defendant’s own actions were sufficient to state an actionable Lanham Act false advertising claim.

  The Tenth Circuit reasoned that, while defendant’s website and continuing legal education statements allegedly disparaging grain-free pet foods were not traditional advertisements, they nevertheless plausibly functioned as commercial speech because defendant made them with an economic motivation, and the statements implicitly promoted defendant’s brand while disparaging plaintiff’s product.  As statements premised on published articles, the court treated defendant’s advertising as “establishment claims,” that is, advertising claims that purportedly are “backed up by scientific data,” which may be literally false if “the scientific tests do not establish the proposition for which they were cited, or … were not sufficiently reliable to permit the conclusion for which they were cited.”  In the case before it, the Tenth Circuit concluded that plaintiff’s complaint alleged that the studies defendant relied on were insufficient to support its establishment claims due to “structural infirmities” within the published study designs, including because uncontrolled variables in the studies allegedly undermined their conclusions.

  The Tenth Circuit sustained the dismissal of plaintiff’s conspiracy and Lanham Act claims to the extent they were based on statements made by third parties.  These statements, the court held, were not plausibly made with an economic motivation and did not constitute commercial speech, and instead were opinions protected by the First Amendment.  In reaching this conclusion, the Tenth Circuit relied on the Second Circuit’s decision in ONY Inc. v. Cornerstone Therapeutics, Inc., that, “to 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.” 720 F.3d 490, 498 (2d Cir. 2013). Plaintiff’s “allegations of false statements within” the third parties’ “academic articles fall squarely within this accepted rule,” and thus were not actionable.

  The Tenth Circuit’s adoption of the ONY analysis appears to reflect a continuing trend. E.g., Torrey v. Infectious Diseases Society of Am., 86 F.4th 701, 704-05 (5th Cir. 2023); Pacira BioSciences, Inc. v. Am. Soc’y of Anesthesiologists, Inc., 63 F.4th 240, 246-48 (3d Cir. 2023).  However, the Tenth Circuit’s application of ONY to third-party statements, but not to promotional statements by a direct competitor, may be in tension with ONY itself, which held that a claim could not be based on the advertiser’s distribution of published articles unless the advertiser “distorted the article’s findings.”  In reaching this conclusion, the Second Circuit had emphasized that disagreements with a non-fraudulent study’s design would not offer a basis for holding that the study’s conclusions were plausibly false. Id. at 497-498.  By contrast, the Tenth Circuit appears to allow a Lanham Act false advertising claim under the establishment claim rubric based on a challenge to a non-fraudulent study’s design.

  Categories: False Advertising,  Lanham Act
  

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• KETONATURAL PET FOODS INC. V HILLS PET NUTRITION INC.