Section 43(a) of the Lanham Act creates a cause of action for false advertising where a competitor “uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which . . . in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities.” 15 U.S.C. § 1125(a).

Among other things, a claim of false advertising requires that one has “made a false or misleading description of fact or representation of fact in a commercial advertisement about [its] own or another's product.” Cottrell, Ltd. v. Biotrol Int'l, Inc., 191 F.3d 1248, 1252 (10th Cir. 1999) (citation omitted); see also Zoller Labs., LLC v. NBTY, Inc., 111 F. App'x 978, 982 (10th Cir. 2004) (unpublished).

But this only applies if the statement under attack is a statement of fact. Courts have long concluded that only statements of fact are actionable under the Lanham Act. See Intermountain Stroke Center, Inc. v. Intermountain Health Care, Inc., 638 F. App'x 778, 785–86 (10th Cir. 2016) (unpublished); see also Verisign, Inc. v. XYZ.COM LLC, 848 F.3d 292, 302 (4th Cir. 2017) (“[I]n order to be ‘false' in any way cognizable under the Lanham Act, a statement must also be one of fact.”).

“A factual claim is a statement that ‘(1) admits of being adjudged true or false in a way that (2) admits of empirical verification.'” Am. Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387, 391 (8th Cir. 2004) (quoting Pizza Hut, Inc. v. Papa John's Int'l, Inc., 227 F.3d 489, 496 (5th Cir. 2000)).

“Local” Too Vague to be a Factual Claim

In Bimbo Bakeries USA, Inc. v. Sycamore, 29 F.4th 630 (10th Cir. 2022), among other claims including trade secret misappropriation claims, Bimbo Bakeries claimed that its competitor, U.S. Bakery, engaged in false advertising when it used the word “Local” as part of a tagline in advertisements.

The Tenth Circuit held that the word “local” is not a factual claim because it cannot be “adjudged true or false in a way that . . . admits of empirical verification,” citing American Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387, 391 (8th Cir. 2004) (quoting Pizza Hut, Inc. v. Papa John's Int'l, Inc., 227 F.3d 489, 496 (5th Cir. 2000)).

For one thing, using the word “local” in a marketing campaign, without anything more, can connote a host of ideas. It might mean that a company hires local workers, that it uses local materials, that it is locally based, that it participates in outreach efforts with local organizations, or that it donates money to local causes. Even assuming that “local” refers to where a product was made, however, the word lacks any specific objective meaning beyond the general concept it conveys. Definitions of “local” and views about whether something is “local” vary wildly, so the word's usage in marketing can only communicate U.S. Bakery's position that its products are local. The same ambiguity haunts every rival interpretation of the word. Without more, then, the veracity of a locality claim cannot be judged in an empirically verifiable way. See Am. Italian Pasta Co., 371 F.3d at 391. Locality is fundamentally subjective.

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And there is no principled, universal, or intuitive magic number of miles at which something stops being “local.” See id. at 831 (academic study explaining “there is no general consensus on a definition [of ‘local'] in terms of the distance between production and consumption”). In the absence of mile markers, literal or figurative, we are unable to assess a locality claim as a factual matter. We are left with the conclusion that “local” is simply a statement of opinion with which others may agree or disagree without generating legal liability. The word “does not contain the kind of detailed or specific factual assertions that are necessary to state a false advertising cause of action.” See Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246 (9th Cir. 1990). For these reasons, the word “local,” standing alone, “is not an objectifiable statement of fact upon which consumers would be justified in relying.” See Pizza Hut, 227 F.3d at 504; see also Am. Italian Pasta Co., 371 F.3d at 391 (holding tagline “America's Favorite Pasta” non-actionable under Lanham Act because definition of “favorite” was “entirely subjective and vague,” failing to “convey a quantifiable threshold” or otherwise provide “an empirical benchmark by which the claim [of being ‘America's Favorite Pasta'] can be measured”); Renfro v. Champion Petfoods USA, Inc., 25 F.4th 1293, 1304–05 (10th Cir. 2022) (holding that, under state law, pet food manufacturer's “claims that ingredients [we]re ‘fresh' and ‘regional' [we]re not subject to measurement” and therefore “not empirically verifiable”).

The Tenth Circuit found that the word “local” was and not a statement of fact as it is “vague” and “an indeterminate and unverifiable adjective.” Because it is not a statement of fact, the use of the word “local” in advertising by a competitor was not actionable under the Lanham Act.

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