Resolving the Circuit Split on Standing in False Advertising Claims and Incorporation of Prudential Standing in State Deceptive Trade Practices Law: The Quest for Optimal Levels of Accurate Information in the Marketplace

Authors

Kevin M. Lemley

Document Type

Article

Abstract

This article has two significant goals. First, it addresses the circuit split on the proper test for standing in false advertising claims under section 43 (a) of the Lanham Act. With slight modification, courts should adopt the reasonable interest test as articulated in two recent opinions authored by Justice Alito while he was sitting on the Third Circuit of Appeals, Second, this article proposes similar prudential standing considerations, along with proposed legislative amendments, for state deceptive trade laws. This section of the article focuses primarily on Arkansas law, but the proposals set forth can be applied to other jurisdictions. The linking theme throughout this article is that unfair competition laws achieve optimal levels of accurate information in the market. False advertising and state deceptive trade practices laws are two such laws that should be applied to secure these optimal levels in the market.

This article demonstrates why prudential standing measures will ensure proper enforcement of the Lanham Act and state deceptive trade practices laws to promote optimal levels of accurate information in the market. To accomplish this task, it is necessary to explore the origin and the development of both laws. Part I presents an overview of false advertising under section 43(a) of the Lanham Act. Part II discusses the legislative history and case law interpretation of section 43(a). Part III analyzes the reasonable interest test to evaluate prudential standing for false advertising. Part IV presents the relationship of false advertising law and state deceptive trade practices laws. Part V discusses Arkansas laws affecting false advertising and makes suggestions to incorporate prudential standing measures for deceptive trade practices claims into Arkansas law. By adopting these measures, courts can apply the Lanham Act and deceptive trade practice laws to secure optimal levels of accurate information in the marketplace and avoid the anticompetitive effects caused by over enforcement.

Recommended Citation

Kevin M. Lemley, Resolving the Circuit Split on Standing in False Advertising Claims and Incorporation of Prudential Standing in State Deceptive Trade Practices Law: The Quest for Optimal Levels of Accurate Information in the Marketplace, 29 U. Ark. Little Rock L. Rev. 283 (2007).
Available at: https://lawrepository.ualr.edu/lawreview/vol29/iss2/3