False Advertising Surveys

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), prohibits false or misleading representations of fact in commercial advertising and promotion. Where a plaintiff alleges that an advertisement, product label, or other commercial communication conveys a false or misleading message to consumers, a consumer survey can measure directly whether the communication causes consumers to form the alleged false belief — and whether that belief would arise in the absence of the challenged element. These surveys are also known as "consumer perception surveys" or "net impression surveys," and they are a principal form of empirical evidence in false advertising proceedings under the Lanham Act and before the National Advertising Division (NAD) of BBB National Programs. Dr. David Neal has conducted many false advertising surveys in federal district court litigation and in NAD proceedings.

Measuring Consumer Perception

A false advertising survey typically measures the messages consumers actually take away from the communication at issue — what courts have referred to as the "net impression" conveyed to the relevant audience. The survey presents respondents with the challenged advertisement, label, or other stimulus and often initially asks open-ended questions about what claims or messages consumers believe are being communicated. Questions are structured to begin with broad, unaided prompts, allowing respondents to articulate their own understanding of the communication before any focused, closed-ended follow-up probes. This sequencing is designed to capture the perceptions consumers independently form — not perceptions suggested by the questionnaire.

A test cell and control cell design is employed to isolate the contribution of the challenged element. Respondents in the test cell are shown the communication as it appears in the marketplace; respondents in the control cell are shown a version from which the allegedly false or misleading element has been removed or modified, generally with all other features held constant. By comparing the perceptions reported across the two cells, the survey identifies what consumers understand specifically because of the at-issue element — distinct from pre-existing beliefs, the overall context of the communication, and other factors common to both conditions.

Puffery

Not all advertising claims are actionable under the Lanham Act. Courts have recognized that vague, general expressions of superiority or subjective quality — often referred to as puffery — typically do not communicate specific, verifiable factual propositions to consumers, and are therefore not susceptible to being literally or impliedly false. Consumer surveys are informative in this context. A "puffery survey" can determine whether respondents do, or do not, take away a specific, quantifiable factual representation from a claim – a survey finding that then bears on whether the claim functions as mere puffery or not.

Materiality

A plaintiff in a false advertising case often seeks to not only test if the challenged communication is false or misleading, but also if the false or misleading message is material — that it is likely to influence consumer purchasing decisions or behavior. Consumer surveys can address materiality by measuring the degree to which purchasing decisions or other relevant behaviors differ between consumers who received the challenged message and those in a control condition who did not.

Admissibility and Scientific Standards

False advertising surveys submitted in federal proceedings are subject to the same admissibility standards as other expert testimony, including the requirements of Rule 702 of the Federal Rules of Evidence and the framework established by Daubert v. Merrell Dow Pharmaceuticals, Inc. All surveys conducted at Catalyst are designed to meet the standards of the Federal Judicial Center's Manual for Complex Litigation and the Reference Manual on Scientific Evidence, and to withstand rigorous methodological scrutiny in both deposition and trial proceedings.