Survey Says: Who Cares? Consumer Surveys and Implied Claims
March 28, 2012
The Third Circuit Court of Appeals recently held that a court may refuse to consider survey evidence of consumer deception where “the meaning of a factually accurate and facially unambiguous statement” is clear in light of the context in which it is presented, such that no reasonable consumer could be misled by the challenged advertisement. In so ruling, the court joined the Seventh Circuit as the only federal appellate courts to hold that survey evidence cannot be used to challenge unambiguous advertising claims. Norman C. Simon, litigation partner, Kramer Levin Naftalis & Frankel LLP, and Paul Franz, vice president and general counsel, global commerce, legal, The Procter & Gamble Company, discussed the impact of this emerging trend in the appellate courts and also addressed recent developments in traditional survey evidence used in much of the false advertising litigations involving challenges to implied claims.
“Survey Says: Who Cares? Consumer Surveys and Implied Claims.” Norman C. Simon, Litigation Partner, Kramer Levin Naftalis & Frankel LLP; Paul Franz, Vice President and General Counsel, Global Commerce, Legal, The Procter & Gamble Company. ANA Advertising Law and Public Policy Conference, 03/28/2012.