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CHAPTER X
NOT JUST FOR “CONSUMERS”:
PROMOTIONAL STATEMENTS B2B
Competitor false advertising remedies under the Lanham Act apply
equally to “business-to-business” communications and traditional
“consumer” advertising. A common misconception is that Lanham Act
false advertising cases are limited to “classic” advertising campaigns that
have widespread distribution to the general public. Reinforcing the
misconception, many of the better known Lanham Act false advertising
cases feature consumer products, such as mouthwash,1 chicken,2
sweeteners,3 infant formula,4 and diaper pails.5 Yet there is a different,
but equally important species of Lanham Act cases about promotional
statements that the consuming public never sees: promotions to
businesses.
Business to business (B2B) promotional statements arise in a variety
of contexts, such as when a company sells raw material to a downstream
manufacturer or when a company negotiates product placement on the
shelves of national retailers. Such statements are often made verbally or
in slides and e-mails rather than on billboards and television
commercials. Although statements in business settings are not made to
the general public, they are covered by the Lanham Act’s prohibition
against misleading promotional statements of fact.
Cases in the B2B setting have been sporadic and isolated, and
commentators and jurists have not previously recognized or discussed
these cases as a unique genre of Lanham Act cases. As illustrated by a
pair of New York cases from 2011 involving rodenticides (Reckitt
Benckiser, Inc. v. Motomco Ltd.)6 and ingredients for nutritional
2. Sanderson Farms, Inc. v. Tyson Foods, Inc., 547 F. Supp. 2d 491 (D. Md.
2008).
3. Merisant Co. v. McNeil Nutritionals, LLC, 515 F. Supp. 2d509 (E.D. Pa.
2007).
4. PBM Prods. v. M ead Johnson & Co., 639 F.3d 111 (4th Cir. 2011).
5. Munchkin, Inc. v. Playtex Prods., 2011 WL 2174383 (C.D. Cal. Apr. 11,
2011).
