Tenth Circuit: “Establishment-Claim” Lanham Act Liability for a Competitor’s Website Links and Vet-Education Materials—But Not for Independent Vets’ and Nonprofits’ Public Scientific Speech Absent Quid Pro Quo

A. Precedents Cited (and How They Drove the Result)

1) Pleading posture and plausibility

• SEC v. Shields: supplied the baseline that allegations are taken as true at the motion-to-dismiss stage.
• McAuliffe v. Vail Corp., Chilcoat v. San Juan Cnty., and Bell Atl. Corp. v. Twombly: reinforced de novo review and the “plausible on its face” standard.
• Safe Streets All. v. Hickenlooper: reiterated viewing allegations in the light most favorable to the plaintiff.

2) Lanham Act elements and the “commercial advertising or promotion” test

• Sally Beauty Co., Inc. v. Beautyco, Inc.: provided the Tenth Circuit’s elements for a § 1125(a) false advertising claim.
• Proctor & Gamble Co. v. Haugen: supplied the Circuit’s four-part test for “commercial advertising or promotion” and illustrated that disparagement can function as commercial speech even outside “classic advertising.”
• The court also canvassed sister-circuit approaches (e.g., Podiatrist Ass'n, Inc. v. La Cruz Azul De Puerto Rico, Inc., Seven-Up Co. v. Coca-Cola Co., Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., Suntree Techs., Inc. v. Ecosense Int'l, Inc., Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., Neuros Co., Ltd. v. KTurbo, Inc.) to emphasize that “promotion” can be broader than conventional ads.

3) The First Amendment boundary: defining “commercial speech”

• United States v. Alvarez: anchored the premise that even false speech can be protected if not commercial; hence the Lanham Act’s commercial-speech limiter matters.
• Bolger v. Youngs Drug Prods. Corp. (and its foundation in Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.): provided the three-factor, holistic test (advertisement; reference to a specific product; economic motivation) for identifying non-core commercial speech.
• Edward Lewis Tobinick, MD v. Novella and Podiatrist Ass'n, Inc. v. La Cruz Azul De Puerto Rico, Inc.: showed that product disparagement can be commercial, but context is decisive.
• Procter & Gamble Co. v. Amway Corp. and Ariix, LLC v. NutriSearch Corp.: sharpened “economic motivation” into something closer to “primarily” motivated by compensation, not merely having an incentive.
• Jordan v. Jewel Food Stores, Inc.: supported that brand promotion can qualify even without proposing a specific transaction.
• Porous Media Corp. v. Pall Corp.: used to illustrate how a competitor relationship and financial concerns can evidence economic motive.
• Boule v. Hutton (Calabresi, J., concurring): highlighted Congress’s intent not to extend Lanham Act liability into broader-protected speech.

4) Falsity and the “establishment claim doctrine”

• Vitamins Online, Inc. v. Heartwise, Inc. and Zoller Lab'ys, LLC. v. NBTY, Inc.: framed the Tenth Circuit’s literal falsity standards (including falsity “by necessary implication”).
• I Dig Texas, LLC v. Creager and Clorox Co. P.R. v. Proctor & Gamble Com. Co.: supported that literal falsity requires an unambiguous message; “necessary implication” looks to the ad in its entirety.
• Castrol, Inc. v. Quaker State Corp. and Osmose, Inc. v. Viance, LLC: supplied the establishment-claim rule: when an ad implies “science proves it,” falsity can be shown by pleading that the cited science does not establish the proposition or is unreliable for that conclusion.
• The opinion noted broad circuit adoption of establishment-claim approaches (e.g., Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharms. Co., C.B. Fleet Co., Inc. v. SmithKline Beecham Consumer Healthcare, L.P., BASF Corp. v. Old World Trading Co., Rhone-Poulenc Rorer Pharms., Inc. v. Marion Merrell Dow, Inc., Southland Sod Farms v. Stover Seed Co., ALPO Petfoods, Inc. v. Ralston Purina Co.).

5) Scientific publications and “opinion-like” conclusions

• Pacira BioSciences, Inc. v. Am. Soc'y of Anesthesiologists, Inc. and Conformis, Inc. v. Aetna, Inc.: supported skepticism that scientific conclusions in academic contexts are actionable commercial speech.
• ONY, Inc. v. Cornerstone Therapeutics, Inc.: provided the key rule that non-fraudulent scientific conclusions drawn from accurately described data and methodologies amid legitimate scientific debate are treated as non-actionable opinion for Lanham Act purposes.

6) “Educational” dissemination can still be commercial (for the company-speaker)

• Washington Legal Found. v. Friedman, Gordon & Breach Sci. Publ'rs S.A. v. Am. Inst. of Physics, and Bracco Diagnostics, Inc. v. Amersham Health, Inc.: were used to show that targeted “educational” materials disseminated by a manufacturer to drive purchasing can be commercial speech.

7) Social-media moderation as expressive conduct (but not enough here)

• Moody v. NetChoice, LLC: cited to note that content curation/moderation is expressive; nonetheless, the pleadings did not connect the moderators’ conduct to Hill’s in a way that made it commercial speech.

8) Remand practice and Kansas conspiracy elements

• Stoldt v. City of Toronto: supplied Kansas’s rule that conspiracy is not actionable without an independent underlying wrong.
• SEC v. Cochran: supported remanding issues not decided below (including the predicate-wrong question and the pleading-standard question).

B. Legal Reasoning

1) Separating Hill’s speech from third-party speakers

The court’s core move was to separate (i) what Hill’s itself disseminated to the market from (ii) what veterinarians and non-profits said in their own names. For Hill’s, the complaint plausibly alleged a profit-driven campaign to steer consumers away from BEG diets toward “traditional” diets—where Hill’s was a dominant incumbent. For veterinarians and non-profits, the speech looked like public-facing scientific/health commentary lacking a sufficiently pleaded commercial “hook.”

2) Hill’s website statements and hyperlinks can be commercial speech

Applying Bolger holistically, the court held Hill’s website content plausibly functioned as advertising even without a “buy Hill’s now” pitch. It plausibly promoted Hill’s as a safer alternative through disparagement of a rival category, consistent with Haugen.

Crucially, the court treated Hill’s hyperlinks to veterinarians’ blog posts as part of Hill’s promotional messaging: even if the linked veterinarian pages are noncommercial in isolation, embedding them on Hill’s site can “transform” their practical function into commercial promotion—borrowing the functional logic articulated in Edward Lewis Tobinick, MD v. Novella.

3) Hill’s veterinarian education materials can be commercial speech

Hill’s argued its continuing-education materials were “purely educational.” The panel rejected categorical immunity: targeted educational dissemination can be commercial where its primary purpose is to encourage purchase of the disseminator’s products. The court relied on Bolger and on “manufacturer-to-professional” cases like Washington Legal Found. v. Friedman.

4) Literal falsity via establishment-claim pleading

The court endorsed applying the establishment claim doctrine at the pleading stage when statements imply scientific backing for a causal or correlative health-risk claim (e.g., “DCM is disproportionately associated with grain-free diets”). KetoNatural plausibly pleaded falsity by alleging, in substance, that the cited/available studies did not establish the asserted link, and that no reliable incidence data supported claims tying BEG diets to a “spike.”

Notably, the panel rejected the district court’s demand that KetoNatural “prove the negative” (that no link exists) at the motion-to-dismiss stage. Establishment-claim falsity can be pleaded by alleging the scientific support does not establish the proposition for which it is invoked, tracking Castrol, Inc. v. Quaker State Corp..

5) Veterinarians’ and nonprofits’ public statements were not plausibly commercial speech

For third-party veterinarians and nonprofits, the panel found the necessary commercial-speech indicia missing: the statements were not ads, did not promote Hill’s, and—most importantly—were not plausibly pleaded as substantially economically motivated by a quid pro quo. Research funding and institutional ties were not enough without pleaded facts showing compensation contingent on the challenged speech (drawing on Ariix, LLC v. NutriSearch Corp. and Procter & Gamble Co. v. Amway Corp.).

6) Academic articles: a strong noncommercial presumption

The court affirmed dismissal for peer-reviewed publications, aligning with the principle that scientific conclusions in academic journals generally resemble protected opinion and are not Lanham Act commercial speech absent features like fraud or direct promotional republishing. The panel cited ONY, Inc. v. Cornerstone Therapeutics, Inc. and related authority.

7) The Facebook group/website: insufficient linkage and motivation allegations

Even acknowledging that moderation is “expressive” (Moody v. NetChoice, LLC), the complaint did not plausibly allege who the moderators were or how they were economically motivated by Hill’s in a way that would convert the group’s statements into commercial speech.

8) What the court did not decide

• Whether Lanham Act false advertising must be pleaded under Rule 9(b) or Rule 12(b)(6).
• Whether, under Kansas law, a Lanham Act violation can serve as the predicate wrong for civil conspiracy.
• Whether KetoNatural satisfies the elements under the ultimate pleading standard—reserved for remand.

C. Impact

1) Expanded exposure for “content marketing” and link-outs

The opinion signals meaningful Lanham Act risk for companies that publish “educational” webpages and curate third-party scientific content via hyperlinks to support product-adjacent claims. If the company’s site context makes the link-out function as promotional disparagement, it can be treated as the company’s commercial speech for Lanham Act purposes.

2) Increased viability of science-based falsity claims at the pleading stage

Plaintiffs can plead “literal falsity” without conclusively disproving a health-risk hypothesis, by alleging that the defendant’s implied “science proves it” message lacks adequate scientific establishment (the Castrol framework). This can shift early litigation from “is there a debate?” to “did the defendant claim the science was established?”

3) Stronger protection for independent scientific speakers (absent quid pro quo)

The decision draws a protective line around veterinarians’ and nonprofits’ public scientific commentary unless plaintiffs plead concrete facts of compensated promotional activity (not just research funding, affiliations, or alleged coordination). This will matter in industries where companies fund research and professional education but do not explicitly sponsor specific messages.

4) Practical effect on vicarious/conspiracy theories

Although the panel did not reach the merits of Kansas conspiracy doctrine in this posture, its commercial-speech holdings reduce the utility of conspiracy theories as a mechanism for sweeping in third-party speakers under the Lanham Act: if the underlying third-party speech is not commercial, there is no Lanham Act predicate for that speech.