Why usana comparative guide

The United States Court of Appeals for the Ninth Circuit Ninth Circuit reversed a decision by the United States District Court for the Southern District of California Southern District and ruled a comparison guidebook to be commercial speech for First Amendment purposes thereby allowing a false advertising claim to proceed against the guide's publisher.

Arrix , a nutritional supplement company, may pursue a Lanham Act false advertising claim against a guidebook publisher, NutriSearch Corporation NutriSearch.

NutriSearch rates the products in the Guide in two ways:. A five-star rating system based on eighteen criteria.

Medal of Achievement for five-star recipients , which a company can achieve by verifying compliance with the Food and Drug Administration's good manufacturing practices and obtaining certification from an approved lab that its label claims are true.

NutriSearch represents that its guide is based on objective data and scientific analyses. The first five editions of the Guide contained a disclaimer that said: "The research, development, and findings are the sole creative effort of the author and NutriSearch Corporation, neither of whom is associated with any manufacturer or product represented in this guide. Usana under a secret financial arrangement, where Usana would pay NutriSearch and the Guide's author hundreds of thousands of dollars in speaking and promotional fee in exchange for giving Usana the Guide's top rating.

Arrix sued NutriSearch for false advertising under the Lanham Act, but the Southern District dismissed Arrix's claim that the Guide was protected under the First Amendment and therefore could not be subject to a false advertising lawsuit.

Arrix appealed to the Ninth Circuit. The Ninth Circuit held that the information inside NutriSearch's Guide constituted commercial speech. Consequently, non-favored companies in the Guide, such as Arrix, could sue NutriSearch for misrepresentation under the Lanham Act. The court looked to three factors in Bolger v. Youngs Drug Prods. The speech is an advertisement. The speech refers to a particular product. The speaker has an economic motivation. The parties had no material disputes on the first two elements.

The Circuit spent considerable time on the third element. It was their 7th win since So it goes without saying that we take safety and quality very seriously.

Learn more at our website www. About the Author: Lyle MacWilliam , MSc, FP, is an author, educator and biochemist who serves as a consultant and public advocate to the natural health products industry.

As a consultant to the natural health products industry, he continues to work with major nutritional manufacturers in Canada , the United States , Mexico , and China. MacWilliam has also served as a contributory writer to Life Extension Foundation, a leading advocate of anti-aging medicine, and has been a consultant to Environment Canada, Human Resources Development Canada, and the British Columbia Science Council.