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rebecca tushnet s 43 b log 06 01 2021 07 01 2021 skip to main skip to sidebar rebecca tushnet s 43 b log false advertising and more wednesday june 09 2021 an antitrust framework for false advertising out now michael a carrier rebecca tushnet an antitrust framework for false advertising 106 iowa l rev 1841 2021 from the introduction federal law presumes that false advertising harms competition federal law also presumes that false advertising is harmless or even helpful to competition contradiction is not unknown to the law of course this contradiction though is acute for not only are both the regimes at issue designed to protect competition but they are both enforced by the same agency the federal trade commission ftc which targets unfair competition through antitrust and consumer protection enforcement anticompetitive conduct the focus of antitrust law increases price and reduces quality false advertising the focus of much consumer protection law deceives consumers and distorts markets both types of conduct harm consumers despite this overlap nearly all courts have dismissed private antitrust claims based on false advertising they have concluded that the conduct cannot violate antitrust law or they have presumed that the harm is de minimis this makes no sense as the supreme court has long established false or misleading advertising has an anticompetitive effect courts concerns stem from the reasonable notion that not every instance of false advertising violates antitrust law and usually implicitly they have worried about applying antitrust s robust remedies of treble damages and attorneys fees these courts fear that antitrust liability will disincentivize companies from engaging in advertising that is merely questionable and that might provide useful information to some consumers but false advertising law preserves a robust space for puffery and debatable opinions overdeterrence concerns don t justify analysis that is inconsistent with both the economics and psychology of advertising and that at a minimum essentially makes it impossible to bring a successful antitrust case based on false advertising nor do the lanham act s remedies for false advertising fully address harms to competition reasoning that conduct that is already illegal on other grounds need not concern antitrust law ignores the multiple other contexts in which breaches of non antitrust laws are considered to be potential antitrust violations we begin by introducing the laws of antitrust and false advertising explaining the regimes objectives and methods we then survey the antitrust caselaw critiquing three approaches courts considering false advertising claims have taken finally we introduce our antitrust framework for false advertising claims at the heart of the framework is a presumption that monopolists engaging in false advertising violate antitrust law with that presumption rebuttable if the defendant can show that the false advertising was ineffective the framework also applies to cases of attempted monopolization by incorporating factors falsity materiality and harm inherent in false advertising law along with competition centered issues on targeting new market entrants and entrenching barriers to entry to illustrate how our framework should work we apply it to an important area advertising for biosimilars which are pharmaceutical products with a substantial and growing role in treating numerous diseases false advertising that exacerbates monopoly power has been dismissed by antitrust law for too long this essay seeks to resolve the contradiction in the law by showing how false advertising threatens the proper functioning of markets posted by rebecca tushnet at 2 46 pm no comments email this blogthis share to x share to facebook share to pinterest labels antitrust false advertising my writings friday june 04 2021 reading list discrimination is unfair interpreting uda a p to prohibit discrimination s tephen hayes kali schellenberg discrimination is unfair interpreting uda a p to prohibit discrimination https papers ssrn com sol3 papers cfm abstract_id 3832022 this article explores a theory that discrimination is a type of unfair practice covered by federal and state laws prohibiting unfair deceptive and sometimes abusive acts and practices uda a ps an unfair practice is defined by statute as something 1 likely to cause substantial injury to consumers 2 which is not reasonably avoidable and 3 that is not outweighed by countervailing benefits to consumers or competition discrimination fits neatly within this statutory language and its incorporation as an unfair practice is consistent with the purposes and traditional guardrails around application of uda a p law as well as general principles in civil rights jurisprudence applying the unfairness discrimination theory would fill important gaps in the existing patchwork of antidiscrimination laws which currently leave large swaths of the economy unregulated and unprotected from a variety of discriminatory practices including those with a disparate impact by taking seriously the plain language of uda a p law federal entities like the cfpb and ftc state attorneys general and agencies and in some cases private individuals could make great strides towards ensuring that entire markets and industries are not free to discriminate posted by rebecca tushnet at 4 54 pm no comments email this blogthis share to x share to facebook share to pinterest labels consumer protection reading list newer posts older posts home subscribe to posts atom email subscription get new posts by email subscribe powered by aba blawg 100 subscribe to posts atom posts all comments atom all comments subscribe via rss or linkedin atom linkedin rss 2 0 use if this than that recommended but needs setup bright young wo man yo who the f is this harvard law school mastodon mostly repost of blog my website email me bluesky blog archive 2026 144 august 30 july 7 june 15 may 20 april 41 march 2 february 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