Ariix, LLC v. NutriSearch Corp., No. 19-55343 (9th Cir. 2021)Annotate this Case
The Ninth Circuit reversed the district court's dismissal of a false advertising claim under the Lanham Act, remanding for further proceedings. At issue is whether the First Amendment shields a publisher of supposedly independent product reviews if it has secretly rigged the ratings to favor one company in exchange for compensation. The panel ruled that this speech qualifies as commercial speech only, and that a nonfavored company may potentially sue the publisher for misrepresentation under the Lanham Act.
In this case, Ariix alleges that NutriSearch rigged its ratings to favor Usana under a hidden financial arrangement. The panel held that Ariix plausibly alleges that the nutritional supplement guide is commercial speech, is sufficiently disseminated, and contains actionable statements of fact. However, the panel remanded for the district court to consider the "purpose of influencing" element under the Lanham Act.