Substantiation in the Courts: Is Unsubstantiated Advertising Deceptive?
61st Spring Meeting of the ABA Section on Antitrust Law
April 10, 2013

In conjunction with partner Bill MacLeod's speech, "Advertising Claims – Are the Substantiation Standards Shifting?," at the 61st Spring Meeting of the ABA Section on Antitrust Law, he authored the paper, "Substantiation in the Courts: Is Unsubstantiated Advertising Deceptive?" It explores whether or not unsubstantiated advertising is deceptive by definition. As a rule, plaintiffs cannot simply argue that a defendant's advertising claims are unsubstantiated and thus, necessarily false under state law. Rather, plaintiffs must affirmatively demonstrate that, in fact, the challenged advertising is actually false. Bill presented three court cases to serve as examples that it is not the defendant's burden in a false advertising action to demonstrate that its advertising claims are substantiated, but, rather, the burden is on the plaintiff to provide evidence affirmatively demonstrating falsity or deception.