Ariix, LLC v. Nutrisearch Corporation
985 F.3d 1107
9th Cir.2021Background
- NutriSearch publishes the NutriSearch Comparative Guide to Nutritional Supplements, which rates products with a five‑star system and issues binary medal certifications (GMP compliance and lab verification).
- Ariix alleges NutriSearch and its author MacWilliam secretly rigged ratings to favor Usana in exchange for substantial payments and speaking fees; earlier editions included a disclaimer claiming independence that the complaint says was false.
- Ariix claims NutriSearch changed rating criteria and withheld a medal from Ariix despite its meeting revised application requirements; NutriSearch allegedly offered to insert Ariix’s medal into future printings but never did.
- Ariix sued under §43(a) of the Lanham Act for false advertising; the district court dismissed, ruling the Guide was noncommercial opinion and not actionable; Ariix appealed.
- The Ninth Circuit reversed and remanded, holding Ariix plausibly alleged the Guide is commercial speech, is sufficiently disseminated, and contains actionable factual misrepresentations (e.g., false independence disclaimer and implications from withholding a binary medal); the court left the ‘‘purpose of influencing’’ element for the district court to decide.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Guide is "commercial speech" (so Lanham Act can apply) | Ariix: Guide was a sham marketing ploy primarily motivated by payments from Usana and thus commercial speech | NutriSearch: Guide is an independent, informational product review protected by the First Amendment | Court: Plausibly commercial speech given allegations of hidden payments, rigged criteria, false independence disclaimer; question resolved for pleading stage in Ariix's favor |
| Whether defendant must be in commercial competition with plaintiff | Ariix: not needed; focuses on misrepresentations harming Ariix | NutriSearch: LANHAM claim improper because not a commercial competitor or because speech is protected | Parties conceded Lexmark likely abrogated the competition requirement; court assumed plaintiff need not satisfy it |
| Whether the Guide was published "for the purpose of influencing" consumers to buy defendant's goods or services (Coastal element) | Ariix: Guide intended to influence supplement buyers and Usana sales through ratings and sales‑rep targeting | NutriSearch: Guide not designed to promote defendant goods; it informs consumers | Court: Not decided on appeal — remanded to district court to address in first instance (including possible agency analysis re: Usana) |
| Whether the Guide/statements were sufficiently disseminated to the relevant purchasing public | Ariix: Professional edition marketed to tens of thousands of Usana sales reps; organized penetration of market | NutriSearch: Dissemination insufficient or not commercial | Court: Allegations suffice at pleading stage to show sufficient dissemination |
| Whether challenged statements are actionable factual misrepresentations (vs nonactionable opinion) | Ariix: disclaimer of independence and withholding of a binary medal implied false facts; ratings reflect manipulable criteria and thus actionable where deception alleged | NutriSearch: Ratings are opinions/puffery and not provably false; disclaimers are nonactionable rhetoric | Court: Star ratings are nonactionable opinion; but the independence disclaimer and the withholding/implied denial of the binary medal (GMP and lab certification) are specific, falsifiable representations and thus actionable at pleading stage |
Key Cases Cited
- Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983) (multi‑factor test for characterizing speech as commercial)
- Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980) (commercial speech receives lesser First Amendment protection)
- Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) (limits on standing and scope of Lanham Act causes of action clarified)
- Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725 (9th Cir. 1999) (four‑part test for "commercial advertising or promotion" under §1125(a))
- Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038 (9th Cir. 2008) (distinguishing actionable factual claims from nonactionable opinion/puffery)
- Prager Univ. v. Google LLC, 951 F.3d 991 (9th Cir. 2020) (false advertising and implied‑statement theory; guidance on actionable statements)