False Advertising Surveys
Survey evidence for Lanham Act disputes
False advertising disputes often turn on how relevant consumers read a challenged claim, disclosure, label, or ad. We design and critique consumer surveys that help attorneys assess deception, materiality, claim interpretation, and related questions under the Lanham Act.
The goal is to find out whether a marketing message is likely to mislead relevant consumers, and whether the evidence supports your theory of the case. Circumstances differ, so we approach each engagement individually.
The usual question
What did consumers understand, not what did the advertiser mean to say?
What did consumers understand, not what did the advertiser mean to say?
What Consumer Surveys Can Answer
A claim can seem clear to the company that wrote it, misleading to a competitor, and ambiguous to shoppers. A survey measures how relevant consumers actually respond. A survey can help answer questions such as these:
1Do consumers take away the message the plaintiff alleges?
2Could a statement mislead a meaningful portion of the audience?
3Does an implied message actually come across?
4Does a disclaimer change what consumers understand?
5Is the claim material to consumers?
6Does the advertising affect purchase interest or perceived value?
7Does an opposing survey measure the right question?
A survey is only as useful as its design. It has to translate the legal claim into a sound empirical test.
False Advertising Under the Lanham Act
Section 43(a)(1)(B), codified at 15 U.S.C. § 1125(a)(1)(B), gives a federal cause of action for false or misleading representations of fact in commercial advertising or promotion. In general, a plaintiff must show:
A false or misleading statementActual or likely deception of a substantial segment of the audienceMateriality to purchasing decisionsEntry into interstate commerceResulting injury
Literal falsity
A statement that is literally false may support liability without survey evidence.
Implied falsity
A claim may be literally true, or ambiguous, and still mislead. Here surveys become central.
Lexmark International, Inc. v. Static Control Components, Inc. (2014) refined standing through a zone-of-interests test and a proximate cause standard. Your counsel will frame the legal questions. Consumer perception is most useful when it is tied to takeaway, materiality, and harm in the marketplace.
Measuring Consumer Takeaway
Takeaway is the meaning shoppers receive from a claim in context, and it can come from more than the words. All of these can contribute:
LayoutImagesEmphasisComparisonsOmissionsQualifiersPackagingSealsEndorsementsWebsite design
Our aim is not to make a claim look more or less misleading. It is to produce reliable evidence of how the audience understands it. Surveys can test whether consumers see a claim as:
FactualComparativeImpliedExaggeratedAspirationalBacked by particular evidence
The survey must be tied to the actual dispute, and it should reflect realistic marketplace encounters.
Survey Design for False Advertising Claims
Design choices can affect both admissibility and weight. We measure consumer perception, not attorney argument.
1
Universe
Should reflect the relevant market, often current or prospective purchasers in the product category.
2
Stimulus
Should reflect real marketplace context, not an isolated phrase.
3
Control
Identical to the test version except that the challenged element is removed, neutralized, or modified, which isolates that element’s effect.
4
Wording
Avoids suggesting an answer, and separates unaided from aided responses where appropriate.
Claims We Help Attorneys Evaluate
These kinds of claims may call for survey evidence. Each raises different design issues, tied to the legal theory and the marketplace setting.
Product performanceComparative advertisingScience-based claims, such as “clinically proven” or “doctor recommended”“Natural,” “clean,” “green,” “eco-friendly,” and sustainability claimsIngredient, formulation, origin, and source representationsPricing, savings, discount, and value claimsPackaging, labeling, websites, landing pages, and digital advertisingDisclosures and disclaimersOmissions and implied messagesEndorsements, certifications, seals, sponsored content, and consumer reviews
Daubert, Reliability, and Scrutiny
Survey evidence may be examined under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). Rule 702 addresses sufficient facts or data, reliable principles and methods, and their reliable application to the case. Common attacks include:
An improper universeA small sampleAn unrealistic stimulusLeading wordingMissing controlsFailure to replicate marketplace conditionsConclusions that go beyond the data
The court determines admissibility and weight in the context of the particular record. Design flaws may affect either assessment. We design with that scrutiny in mind: clear research questions, defensible controls, careful wording, and transparent analysis.
Survey Evidence and Implied Falsity
For implied falsity, a survey has to address the specific misleading message alleged, not just whether consumers can define the words used. A literally true claim may still suggest something unsupported, and the question is whether it misleads a meaningful portion of the audience.
Mead Johnson & Co. v. Abbott Laboratories (7th Cir. 2000) addressed the limits of survey evidence when consumer misunderstanding of a literally true claim was not enough on its own. In Merisant Co. v. McNeil Nutritionals LLC (E.D. Pa. 2007), survey evidence on Splenda’s “Made from Sugar” advertising was assessed for whether it implied attributes the product lacked.
The lesson for survey design: measure the implied takeaway, its materiality, and the consumer response.
Reviews, Endorsements, and Sponsored Content
Disputes increasingly involve reviews, testimonials, influencers, social media tags, seals, certifications, and sponsored content. The FTC’s revised Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 CFR Part 255) and its 2024 Rule on the Use of Consumer Reviews and Testimonials (16 CFR Part 465) draw attention to material connections, review manipulation, and how consumers interpret endorsements.
In litigation, a survey may help show whether consumers perceive a material connection, notice and understand a disclosure, or are misled by how reviews are presented.
When to Bring In a Survey Expert
Timing affects survey quality. In preliminary injunction matters there may be little time to pilot an instrument or test alternative wording. Early involvement gives your team more flexibility and lowers the risk that a design looks reverse-engineered to fit a litigation position. We can turn a legal theory into a testable design before positions harden. Things to settle early:
The challenged communicationThe alleged takeawayThe populationThe marketplace contextThe role of disclosuresThe need for a controlBudget and timingIntended use: reports, depositions, motions, settlement, or trial
How Survey Evidence Supports Your Case
Surveys are especially valuable when the parties disagree about what a claim communicates. They put measurement in place of internal intent, attorney interpretation, or anecdotes. A reliable survey also shows what the data supports and where a case may be vulnerable.
Before filing
Assess claim strength, litigation risk, and settlement posture, or decide whether more evidence is needed.
During litigation
Support expert and rebuttal reports, deposition strategy, motion practice, preliminary injunction proceedings, class certification issues, or trial.
Rebuttal of False Advertising Surveys
We also critique and rebut opposing experts’ surveys. We look at whether the survey:
Used the right universeTested the relevant claimPresented the communication fairlyReflected marketplace conditionsIncluded an appropriate controlAvoided leading questionsDrew conclusions that follow the dataAnalyzed open-ended responses properlyDisclosed enough detail to replicate
Typical flaws include testing the wrong population, exaggerating the message, isolating a claim from its context, or overinterpreting responses. A rebuttal explains how those weaknesses affect reliability, relevance, and usefulness.
Independent Survey Evidence
We provide independent, methodologically sound consumer research for false advertising and related Lanham Act matters. We help legal teams assess consumer understanding, see what the evidence can support, find vulnerabilities in opposing surveys, and fit consumer perception into the broader strategy. That applies to labels, packaging, websites, disclosures, endorsements, and review presentations.
How much will a survey cost?
Every study is built around the needs of the case, so the cost depends on the design.
Areas of Expertise
Likelihood of Confusion
Test-versus-control experimental designs.
Strength of Mark
Survey evidence on how strong a contested mark is.
Secondary Meaning
Whether a mark has acquired meaning for consumers.
Acquired Distinctiveness
How trade dress, such as product design or color, affects consumers.
Lanham Act Claims
Surveys for confusion, secondary meaning, trade dress, and related claims.
Consumer Perception
How consumers view marks, designs, colors, and websites.
Consumer Understanding
How consumers process marketing messages, labeling, and disclaimers.
Rebuttal Work
Critiquing and rebutting opposing experts’ surveys.
Do you have a case that involves false advertising?
Call us to talk through how a consumer study could show whether survey evidence can support, test, or challenge your false advertising theory.