FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARIIX, LLC,

Plaintiff-Appellant,

v.

NUTRISEARCH CORPORATION; LYLE 

MACWILLIAM,

Defendants-Appellees.

No. 19-55343

D.C. No.

3:17-cv-00320-

LAB-BGS

OPINION

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, Chief District Judge, Presiding

Argued and Submitted April 15, 2020

Pasadena, California

Filed January 22, 2021

Before: Daniel Paul Collins and Kenneth K. Lee, Circuit 

Judges, and Gregory A. Presnell,* District Judge.

Opinion by Judge Lee;

Dissent by Judge Collins

* The Honorable Gregory A. Presnell, United States District Judge 

for the Middle District of Florida, sitting by designation.
2 ARIIX V. NUTRISEARCH

SUMMARY**

Lanham Act

The panel reversed the district court’s dismissal of a false 

advertising claim under the Lanham Act and remanded for 

further proceedings.

Addressing whether the First Amendment shields a 

publisher of supposedly independent product reviews if it 

has secretly rigged the ratings in favor of one company in 

exchange for compensation, the panel held that this speech 

qualifies as commercial speech. Accordingly, a non-favored 

company may potentially sue the publisher for 

misrepresentation under the Lanham Act, which prohibits 

any person from misrepresenting her or another person’s 

goods or services in “commercial advertising or promotion.”

Addressing whether the defendant made 

misrepresentations in advertising or promotion, the panel 

concluded that the plaintiff plausibly alleged that the 

defendant’s publication was commercial speech, was 

sufficiently disseminated, and contained actionable 

statements of fact. The panel left for the district court to 

decide, on remand, whether defendant’s publication was “for 

the purpose of influencing consumers to buy defendant’s 

goods or services.”

Dissenting, Judge Collins wrote that the plaintiff failed 

to plead sufficient facts to show that it had an actionable 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ARIIX V. NUTRISEARCH 3

claim for false advertising under the Lanham Act. He wrote 

that, in his view, it was unnecessary to reach the question 

whether the defendant’s publication amounted to 

commercial speech for First-Amendment purposes because 

the Lanham Act applies only to a subset of commercial 

speech, and defendant’s publication did not fall within the 

statute’s textual limitations.

COUNSEL

Aaron R. Gott (argued), Jarod M. Bona, David C. Codell,

and Luke Hasskamp, Bona Law PC, La Jolla, California, for 

Plaintiff-Appellant.

Erik A. Christiansen (argued) and Alan S. Mouritsen, 

Parsons Behle & Latimer, Salt Lake City, Utah, for 

Defendants-Appellees.

OPINION

LEE, Circuit Judge:

This case addresses whether the First Amendment 

shields a publisher of supposedly independent product 

reviews if it has secretly rigged the ratings to favor one 

company in exchange for compensation. We rule that this 

speech qualifies as commercial speech only, and that a nonfavored company may potentially sue the publisher for 

misrepresentation under the Lanham Act. We reverse the 

district court’s dismissal of the complaint, and remand for 

further proceedings.
4 ARIIX V. NUTRISEARCH

FACTUAL BACKGROUND

I. NutriSearch publishes a widely used nutritional 

supplement guide.

NutriSearch Corporation regularly self-publishes the 

NutriSearch Comparative Guide to Nutritional Supplements

(the “Guide”), a book that compares and reviews nutritional 

supplements sold in the direct marketing industry. Written 

by Lyle MacWilliam, the Guide has become a trusted name 

among sales representatives in the direct marketing 

supplement industry.

The Guide has two types of ratings. First, it 

comparatively rates supplement products using a five-star 

rating system based on 18 criteria. Second, companies 

whose products receive five stars can obtain another 

certification from NutriSearch. These certifications are 

called NutriSearch Medals of Achievement. To obtain a 

medal certification, a company must verify compliance with 

the FDA’s pharmaceutical good manufacturing practices 

(“GMP”) and obtain certification from an approved 

laboratory that its label claims are true. The complaint 

alleges that the medal certifications are “described as a 

binary determination: either a company obtains [GMP] 

certification and laboratory verification of the label claims, 

or it does not.” In the sixth edition of the Guide, Usana 

Health Science, Inc. was the only company that obtained the 

highest ranking, the platinum medal.

NutriSearch portrays itself as an independent company 

that presents only objective data and scientific analyses to 

the public. For example, NutriSearch claims on its website 

that it relies on scientific criteria to mathematically calculate 

the ratings. Further, MacWilliam, the author of the Guide 

and the former CEO of NutriSearch, has appeared on the 
ARIIX V. NUTRISEARCH 5

Dr. Oz Show promoting the Guide as an evidence-based 

book that does not have any “particular bias.” Most relevant 

to this appeal, the inside of every edition of the Guide 

through the fifth edition had the following disclaimer:

This guide is intended to assist in sorting 

through the maze of nutritional supplements 

available in the marketplace today. It is not a 

product endorsement and does not make any 

health claim. It simply documents recent 

findings in the scientific literature.

This guide was not commissioned by any 

public sector or private sector interest, or by 

any company whose products may be 

represented herein. The research, 

development, and findings are the sole 

creative effort of the author and NutriSearch 

Corporation, neither of whom is associated 

with any manufacturer or product 

represented in this guide. (emphasis added).

NutriSearch removed the second paragraph from the sixth 

edition of the Guide, which was published months after Ariix 

filed this lawsuit.

II. Ariix alleges that NutriSearch rigged its ratings to 

favor Usana under a hidden financial arrangement.

NutriSearch’s claims of neutrality are false, according to 

Ariix, LLC, a nutritional supplement company that competes 

fiercely with Usana.

1

 Despite assertions of being a neutral 

1 Because the complaint was dismissed at the pleading stage, we 

assume for purposes of this appeal that the allegations in the complaint 
6 ARIIX V. NUTRISEARCH

third-party reviewer, NutriSearch allegedly has a secret —

and mutually lucrative — relationship with Usana.

MacWilliam — who worked as a Usana sales

representative and served on its scientific advisory board —

at first conceived the Guide to boost sales of Usana products, 

according to Ariix. MacWilliam remained a Usana sales 

representative and advisory board member until another 

company exposed this affiliation. When this happened, 

MacWilliam allegedly told former Usana executives, “I 

should not be on the board or a representative anymore 

because it looks like I’m biased. I am going to create more 

of a third-party appearance, but I’d like you to use me for 

speaking and support me.” Usana agreed to this arrangement 

in exchange for the number one rating in the Guide. Usana 

also encourages its sales representatives to buy the Guide 

and to refer to it in marketing pitches to customers.

Now, Usana annually pays hundreds of thousands of 

dollars in speaking and promotion fees to NutriSearch and 

MacWilliam in exchange for being rated the top supplement 

company in the Guide. Usana’s payments to MacWilliam 

allegedly account for more than 90% of his income.

The complaint alleges additional examples of 

NutriSearch and MacWilliam colluding with Usana to tweak 

the Guide’s ratings criteria to benefit Usana. NutriSearch 

promotes certain scientific claims to dovetail with Usana’s 

marketing campaign, or emphasizes certain ingredients that 

Usana has added to its products to ensure that Usana attains 

the top ranking in the Guide.

are true. Whether Ariix can prove these allegations, of course, is a 

different question and is left for another day.
ARIIX V. NUTRISEARCH 7

In 2008, Usana withdrew its support for NutriSearch 

after other companies obtained a medal certification in the 

Guide. That caused NutriSearch’s sales and MacWilliam’s 

speaking engagements to drop. A Usana executive 

suggested that Usana would recommence providing fees and 

speaking engagements if Usana obtained a number one 

ranking in some way. NutriSearch then released a new 

“Editor’s Choice” award and gave it to Usana. Afterwards, 

MacWilliam approached Usana and, according to a former 

Usana executive, stated that “I would like to do a tour for 

Usana” and that “Usana is number one Editor’s Choice, and 

I’ll travel from city to city so my wife and I can go on a 

summer-long vacation and basically I want you to pay for 

it.” Usana paid MacWilliam $90,000 for that tour.

III. NutriSearch improperly thwarts Ariix from 

obtaining the top rating.

Ariix considers itself Usana’s fiercest competitor in both 

sales and recruitment of independent sales representatives. 

Because of this rivalry, Ariix asserts that NutriSearch has 

improperly thwarted Ariix from obtaining the top medal 

certification in the Guide.

Ariix first applied for a medal certification in 2014. The 

application was denied because NutriSearch decided to stop 

accepting reports and certifications from ISO-17025-

certified laboratories.

2 Even though prior medal recipients 

used ISO-17205-certified labs, NutriSearch applied this new 

2 There was apparently an NBC Dateline expose on something 

called “dry-labbing” that caused NutriSearch to re-think its application 

guidelines. The parties do not explain what dry-labbing is, and it is of 

minimal significance to this appeal.
8 ARIIX V. NUTRISEARCH

restriction only on a future basis, exempting the previous 

recipients (including Usana) from the new requirement.

In response, Ariix sought to obtain a new analysis of its 

formulation by using new protocols and procedures that 

followed NutriSearch’s new guidelines. When Ariix 

submitted its new results, NutriSearch stated that “we can 

insert your NutriSearch GOLD Medal of Achievement into 

future printings of the existing guide once current stock has 

been depleted.” NutriSearch released a new edition of the 

Guide, the sixth edition, but it did not include Ariix’s medal 

certification. NutriSearch then stopped responding to 

Ariix’s inquiries.

Ariix also alleges that Usana in 2011 misappropriated 

Ariix’s confidential information and draft marketing 

materials about its debut product and gave them to 

NutriSearch with the instruction “to run a new printing for 

the express purpose of thwarting Ariix’s entry to the 

market.” At first, NutriSearch rated this product 3.5 stars, 

but after public criticism and incontrovertible evidence of 

quality, NutriSearch revised the rating to 5 stars.

Finally, Ariix points to its failed attempts to engage 

MacWilliam as a speaker. Ariix offered MacWilliam an 

opportunity to speak at one of Ariix’s conventions, but in 

September 2014, MacWilliam declined, explaining he was 

not taking any more speaking engagements. MacWilliam, 

however, continued to take speaking engagements with 

Usana. When confronted with this apparent favoritism, 

MacWilliam admitted that “[t]hey [Usana] will cut me off 

the second I do this [speak for Ariix].”
ARIIX V. NUTRISEARCH 9

PROCEDURAL HISTORY

Ariix filed a complaint in district court against 

NutriSearch and MacWilliam, alleging a false advertising 

claim under Section 43(a) of the Lanham Act. See 15 U.S.C. 

§ 1125(a)(1)(B). In response, the defendants moved to 

dismiss for failure to state a claim.

The district court granted the defendants’ motion to 

dismiss the complaint. The district court interpreted the 

complaint as based on two sets of alleged 

misrepresentations: (1) NutriSearch misrepresented Ariix 

and its products as not being top quality and not worthy of a 

medal certification, and (2) NutriSearch misrepresented 

itself as objective and neutral, when it is in fact a “shill” for 

Usana. In deciding the motion, the court held that the 

Lanham Act does not apply to consumer product reviews, 

even if they are biased, inaccurate, or tainted by favoritism. 

It then reviewed the definition of “commercial advertising or 

promotion” in § 1125(a)(1)(B) and found that the Guide did 

not meet this definition because it was not commercial 

speech and because its statements of neutrality were not 

sufficiently disseminated. It also found that the statements 

in the Guide were unactionable statements of opinion rather 

than actionable statements of fact.

Ariix filed an amended complaint. The amended 

complaint had more allegations about the relationship 

among NutriSearch, MacWilliam, and Usana as well as more 

details on the type of statements used to market the Guide. 

Again, the defendants moved to dismiss for failure to state a 

claim.

The district court granted the motion and dismissed the 

action with prejudice. The court noted that it incorporated 

much of the earlier order and affirmed its conclusion that the 
10 ARIIX V. NUTRISEARCH

Guide as a whole and any statements in the Guide are not 

commercial advertising within the scope of the Lanham Act. 

It also rejected the argument that the relationship between 

the defendants and Usana made it plausible that the Guide 

was commercial advertising. The court found that none of 

the asserted statements, including statements about the 

ratings’ methodology and the failure to award the medal 

certification, were actionable.

Ariix then timely filed its notice of appeal to this court.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 15 U.S.C. § 1121(a) and 

28 U.S.C. § 1291. “We review de novo the district court’s 

dismissal for failure to state a claim.” Wilson v. Lynch, 

835 F.3d 1083, 1090 (9th Cir. 2016). “When ruling on a 

motion to dismiss, we accept all factual allegations in the 

complaint as true and construe the pleadings in the light most 

favorable to the nonmoving party.” Knievel v. ESPN, 

393 F.3d 1068, 1072 (9th Cir. 2005). Our task is to 

“determine whether [the well-pleaded factual allegations] 

plausibly give rise to an entitlement to relief.” Ashcroft v. 

Iqbal, 556 U.S. 662, 679 (2009). See also Starr v. Baca, 

652 F.3d 1202, 1216 (9th Cir. 2011) (“[T]he factual 

allegations that are taken as true must plausibly suggest an 

entitlement to relief, such that it is not unfair to require the 

opposing party to be subjected to the expense of discovery 

and continued litigation.”).

DISCUSSION

The district court made two main determinations about 

Ariix’s false advertising claim: The Guide is not 
ARIIX V. NUTRISEARCH 11

commercial advertisement under the Lanham Act and it 

lacks statements that are actionable.

3

I. Ariix has plausibly alleged that NutriSearch engaged 

in commercial speech, but we remand for the district 

court to consider the “purpose of influencing” 

element under the Lanham Act.

The Lanham Act prohibits any person from 

misrepresenting her or another person’s goods or services in 

“commercial advertising or promotion.” 15 U.S.C. 

§ 1125(a)(1)(B). The Act does not define “advertising” or 

“promotion,” but this court has adopted the following 

definition: (1) commercial speech, (2) by a defendant who is 

in commercial competition with plaintiff, (3) for the purpose 

of influencing consumers to buy defendant’s goods or 

services, and (4) that is sufficiently disseminated to the 

relevant purchasing public. See Coastal Abstract Serv., Inc. 

v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999).

The parties focus mainly on the first element: whether 

NutriSearch’s Guide qualifies as “commercial speech.” If it 

is not commercial speech, then the Lanham Act claim must 

fail, as the Guide would receive robust protection under the 

First Amendment. But if the Guide is commercial speech, 

our First Amendment jurisprudence allows more 

restrictions, including permitting a potential cause of action 

under the Lanham Act. See Central Hudson, 447 U.S. 

3 There are five elements to a false advertising claim under 

§ 1125(a), but the district court’s two determinations address only one 

element (i.e., whether there was “a false statement of fact by the 

defendant in a commercial advertisement about its own or another’s 

product”). Wells Fargo & Co. v. ABD Ins. & Fin. Servs., Inc., 758 F.3d 

1069, 1071–72 (9th Cir. 2014). We thus limit our analysis to this 

element.
12 ARIIX V. NUTRISEARCH

at 562–63 (explaining that commercial speech receives 

lesser protection than other types of speech). We address 

each of the four elements below.

A. Whether the Guide constitutes commercial speech.

We first address whether Ariix’s complaint plausibly 

alleges that the Guide is commercial speech. See Coastal 

Abstract, 173 F.3d at 735. We disagree with the district 

court’s conclusion that the Guide is not commercial speech 

because the complaint plausibly alleges that the Guide is 

essentially a sham marketing ploy intended to boost Usana 

products.

Commercial speech is “usually defined as speech that 

does no more than propose a commercial transaction.” 

United States v. United Foods, Inc., 533 U.S. 405, 409 

(2001). Courts view “this definition [as] just a starting 

point,” however, and instead try to give effect to “a 

‘common-sense distinction’ between commercial speech 

and other varieties of speech.” Jordan v. Jewel Food Stores, 

Inc., 743 F.3d 509, 516 (7th Cir. 2014) (quoting Ohralik v. 

Ohio State Bar Ass’n, 436 U.S. 447, 455–56 (1978)). 

Indeed, “[o]ur commercial speech analysis is fact-driven, 

due to the inherent difficulty of drawing bright lines that will 

clearly cabin commercial speech in a distinct category.” 

First Resort, Inc. v. Herrera, 860 F.3d 1263, 1272 (9th Cir. 

2017) (internal quotation marks omitted).

On its face, the Guide purportedly describes the science 

of nutritional supplements and provides ratings for various 

nutritional supplement products.

4

 Based on this general 

4 Although the Guide is central to both parties’ arguments, neither 

party has attached the Guide as part of the record on appeal or filed the 
ARIIX V. NUTRISEARCH 13

description alone, the Guide does not appear to propose a 

commercial transaction. But speech that does not propose a 

commercial transaction on its face can still be commercial 

speech. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 

60, 66–68 (1983) (finding that informational pamphlets that 

“cannot be characterized merely as proposals to engage in 

commercial transactions” were still commercial speech).

Because of the difficulty of drawing clear lines between 

commercial and non-commercial speech, the Supreme Court 

in Bolger outlined three factors to consider. “Where the 

facts present a close question, ‘strong support’ that the 

speech should be characterized as commercial speech is 

found where [1] the speech is an advertisement, [2] the 

speech refers to a particular product, and [3] the speaker has 

an economic motivation.” Hunt v. City of L.A., 638 F.3d 

703, 715 (9th Cir. 2011) (citing Bolger, 563 U.S. at 66–67). 

These so-called Bolger factors are important guideposts, but 

they are not dispositive. See Bolger, 463 U.S. at 67 n.14 

(“Nor do we mean to suggest that each of the characteristics 

present in this case must necessarily be present in order for 

speech to be commercial.”); Dex Media West, Inc. v. City of 

Seattle, 696 F.3d 952, 958 (9th Cir. 2012).

Applying those Bolger factors, we face a close question.

First, neither side materially disputes that the Guide is 

not in the traditional form of an advertisement — for 

example, there is no price or availability information listed. 

But this fact alone does not tell us much, especially given 

today’s sophisticated and subtle marketing campaigns. For 

Guide as an exhibit in the district court. This was a curious decision. 

Thus, our decision is limited to the descriptions of the Guide as alleged 

in the complaint.
14 ARIIX V. NUTRISEARCH

example, companies now pay so-called “influencers” to 

issue posts on social media touting their products or 

services.5 While such social media posts may not have the 

indicia of a traditional advertisement, there can be little 

doubt that these paid posts are in fact advertisements. See

Federal Trade Commission, FTC Staff Reminds 

Influencers and Brands to Clearly Disclose Relationship

(Apr. 19, 2017), https://www.ftc.gov/news-events/pressreleases/2017/04/ftc-staff-reminds-influencers-brands-cle

arly-disclose (“After reviewing numerous Instagram posts 

by celebrities, athletes, and other influencers, Federal 

Trade Commission staff recently sent out more than 

90 letters reminding influencers and marketers that 

influencers should clearly and conspicuously disclose their 

relationships to brands when promoting or endorsing 

products through social media.”).

Second, neither side materially disputes that the Guide

refers to specific products.6

 But this element does not shed 

much light, either. A publication that is not in a traditional 

advertising format but that still refers to a specific product 

can either be commercial speech — or fully protected 

speech. Compare United States v. Wenger, 427 F.3d 840, 

847–48 (10th Cir. 2005) (finding that a newsletter 

5 A prominent influencer, Kim Kardashian West, stated in a 

declaration that she receives $300,000 to $500,000 for a single Instagram 

post endorsing a company’s product. See Declarations of Kim 

Kardashian West, Todd Wilson, and Gregory Korn Filed in support of 

Plaintiffs’ Motion for Entry of Default and Default Judgment at 4, 

Kimsaprincess, Inc. v. Misguided USA (Finance) Inc., No. 19-cv-01258 

(C.D. Cal. May 3, 2019), Dkt. No. 19-1.

6 NutriSearch argues in its answering brief that “the Guide does not 

refer to ‘a specific product,’” but the very next sentence concedes that 

“[t]o be sure, it refers to more than 1,000 nutritional supplements.”
ARIIX V. NUTRISEARCH 15

concerning investment advice is commercial speech even 

though it “is concededly not a traditionally structured 

advertisement”) with Commodity Trend Serv., Inc. v. 

Commodity Futures Trading Comm’n, 149 F.3d 679, 686 

(7th Cir. 1998) (citing cases that show that product reviews 

are generally not commercial speech).

The third Bolger factor — whether the speaker had an 

economic motivation — requires a more thorough 

explanation. This factor asks whether the speaker acted 

primarily out of economic motivation, not simply whether 

the speaker had any economic motivation. See Procter & 

Gamble Co. v. Amway, 242 F.3d 539, 552–53 (5th Cir. 

2001), abrogated on other grounds by Lexmark Int’l, Inc. v. 

Static Control Components, Inc., 572 U.S. 118 (2014) (“The 

question whether an economic motive existed is more than a 

question whether there was an economic incentive for the 

speaker to make the speech; the Bolger test also requires that 

the speaker acted substantially out of economic motivation.” 

(footnote omitted)); Am. Future Sys., Inc. v. Pennsylvania 

State Univ., 752 F.2d 854, 862 n.26 (3d Cir. 1984) (“The 

critical question would be whether the primary purpose of 

the organization was to sponsor religious activity or to sell 

Bibles, and the Bolger criteria would be applied in an 

attempt to answer this question.”).

Indeed, not all types of economic motivation support 

commercial speech. A simple profit motive to sell copies of 

a publication or to obtain an incidental economic benefit, 

without more, does not make something commercial speech. 

Otherwise, virtually any newspaper, magazine, or book for 

sale could be considered a commercial publication. See, e.g., 

Bolger, 463 U.S. at 67 (“Finally, the fact that Youngs has 

an economic motivation for mailing the pamphlets would 

clearly be insufficient by itself to turn the materials into 
16 ARIIX V. NUTRISEARCH

commercial speech.”); Dex Media, 696 F.3d at 960 (finding 

that the financial benefit obtained from publishing yellow 

pages directories could not characterize the publication as 

commercial); Gordon & Breach Sci. Publishers S.A. v. Am. 

Inst. of Physics, 859 F. Supp. 1521, 1541 (S.D.N.Y. 1994) 

(“The fact that AIP and APS stood to benefit from publishing 

Barschall’s results—even that they intended to benefit—is 

insufficient by itself to turn the articles into commercial 

speech.”).

At the same time, however, economic motivation is not 

limited simply to the expectation of a direct commercial 

transaction with consumers. Courts have found commercial 

speech even when it involves indirect benefits, such as 

benefits to employee compensation (First Resort, 860 F.3d 

at 1273), improvements to a brand’s image (Jordan, 

743 F.3d at 519–20), general exposure of a product 

(Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1017 (3d Cir. 

2008)), and protection of licensees’ interests (Handsome 

Brook Farm, LLC v. Humane Farm Animal Care, Inc., 

193 F. Supp. 3d 556, 568–69 (E.D. Va. 2016)). Importantly, 

the type of economic motivation is not the focus; rather, the 

crux is on whether the speaker had an adequate economic 

motivation so that the economic benefit was the primary 

purpose for speaking.7

7 We do not intend to collapse the Bolger factors into this one factor; 

no one factor will be dispositive. As the Fifth Circuit pointed out, speech 

that is mainly motivated out of economic benefit can still be fully 

protected, such as in labor cases. See Procter, 242 F.3d at 553 & n.30. 

Nor do we suggest that any economic benefit satisfies this factor. Rather, 

the question is context-specific and requires determining whether the 

speaker’s purpose primarily turns on the economic benefit that the 

speaker receives from the speech.
ARIIX V. NUTRISEARCH 17

With the above in mind, we find that Ariix has plausibly

alleged that NutriSearch and MacWilliam published the 

Guide mainly with the economic goal of furthering their own 

self-interests beyond simply benefiting from sales of the 

publication. Specifically, Ariix has alleged enough to make 

it plausible that NutriSearch and MacWilliam published the 

Guide mainly to reap the financial benefits of a hidden 

marketing arrangement with Usana rather than to inform 

consumers about nutritional supplements. For example:

• To begin with, MacWilliam, who worked 

for Usana, concocted the Guide to ratchet 

up sales for Usana products, according to 

the complaint.

• Ariix alleges a specific conversation in 

which Usana agreed to pay 

MacWilliam’s speaking fees if 

NutriSearch gave Usana the “number one 

rating.” Since then, MacWilliam and 

NutriSearch allegedly receive hundreds 

of thousands of dollars annually in 

speaking and other fees from Usana.

• Ariix also alleges an incident in which 

Usana threatened to pull its support for 

NutriSearch when other companies 

obtained a medal certification making 

them appear equal to Usana. In response, 

NutriSearch created a new “Editor’s 

Choice” award to give to Usana, the only 

company to receive this award. 

MacWilliam then used this award as a 

reason to persuade Usana to pay him for 
18 ARIIX V. NUTRISEARCH

a “summer-long vacation” in which he 

promoted Usana.

We do not, however, rely only on the allegations of 

payments. Many of Ariix’s allegations raise significant 

doubts about whether the Guide is an objective compilation 

of product reviews and suggest that the Guide is instead a 

sham marketing scheme intended to benefit Usana.

First, the disclaimer included in the first five editions of 

the Guide stated that the book is “the sole creative effort of 

the author and NutriSearch Corporation, neither of whom is 

associated with any manufacturer or product represented in 

this guide.” That disclosure statement is false, at least 

according to the allegations in the complaint. Indeed, the 

Guide’s genesis was as a marketing tool to sell Usana 

products.

8

 Today, Usana even uses MacWilliam as part of 

its image advertising; the complaint includes an image of 

MacWilliam that states that “I have full confidence that 

USANA will once again stand out as an industry leader and 

will continue to receive an elite standing in the new 

Comparative Guide.” That NutriSearch and MacWilliam 

chose such a strongly worded yet false disclaimer —

disclaiming any association with all manufacturers in the 

Guide despite having obvious ties to Usana — raises 

8 The district court noted that the factual allegations do not show that 

the defendants should be treated as a single entity subject to the same 

conflicts of interest. But showing that the defendants are so closely 

related as to constitute a single entity is not required to plausibly allege 

that the Guide was published primarily for economic benefit. We are not 

asking whether MacWilliam’s actions influence NutriSearch or vice 

versa, but whether allegations involving either defendant reveal the 

primary purpose of the Guide.
ARIIX V. NUTRISEARCH 19

substantial questions about the Guide’s true purpose, if the 

allegations in the complaint are true.

Ariix also alleges collusion about how the Guide’s 

criteria are chosen. MacWilliam and NutriSearch allegedly 

re-wrote the fifth edition of the Guide to promote vitamin D 

and iodine content because it would coincide with Usana’s 

new product formulations and marketing claims. In 

addition, the defendants allegedly coordinated with Usana to 

have the sixth edition focus on “cell-signaling” to match 

Usana’s new marketing campaign focused on cell-signaling. 

Finally, the complaint alleges that the defendants reworked 

the Guide’s medal certifications to award Usana the highest 

medal certification (the Platinum Medal of Achievement), 

something no other company earned.

To be clear, our decision today is a narrow one that is 

tied specifically to the troubling allegations in this case: they 

plausibly suggest that the Guide is more like a sophisticated 

marketing sham rather than a product review guide. Today, 

consumers face waves of advertisements amid a sea of 

product choices. To navigate the seemingly unending 

stream of advertisements, consumers often depend on 

independent reviews for candid and accurate assessments. 

But when someone falsely claims to be independent, rigs the 

ratings in exchange for compensation, and then profits from 

that perceived objectivity, that speaker has drowned the 

public trust for economic gain. Society has little interest in 

protecting such conduct under the mantle of the First 

Amendment. Cf. Central Hudson, 447 U.S. at 563 (“[T]here 

can be no constitutional objection to the suppression of 

commercial messages that do not accurately inform the

public about lawful activity.”). Such speech becomes more 

like “the offspring of economic self-interest” that “is a hardy 
20 ARIIX V. NUTRISEARCH

breed of expression that is not ‘particularly susceptible to 

being crushed by overbroad regulation.’” Id. at 564 n.6.

We are guided by a common-sense distinction between 

protected speech and commercial speech — in this case, 

legitimate product reviews versus paid product promotion —

in determining whether the Guide is commercial speech. Cf. 

Wenger, 427 F.3d at 848 (“While disinterested investment 

advice will still qualify for full First Amendment protection, 

paid publicists’ speech is grounded in commercial 

transactions of the kind that the state has traditionally 

regulated.”). Simply put, paid promotion is commercial 

speech.

Though NutriSearch urges us to rule that biased and 

inaccurate reviews are fully protected speech, Ariix does not 

allege that the Guide is simply biased or inaccurate. A mere 

failure to disclose bias or financial interest would not 

necessarily make speech commercial. Here, though, we face 

allegations that the defendants conceived the Guide to juice 

sales of Usana products, actively misled the public about 

their supposed independence, and fiddled with their own 

ratings criteria to boost a favored company that lavishes 

them with hundreds of thousands of dollars in compensation. 

Put another way, it is more paid promotion than product 

review, according to the complaint. It is not controversial to 

conclude that “liability can arise under the Lanham Act if 

websites purporting to offer reviews are in reality stealth 

operations intended to disparage a competitor’s product 

while posing as a neutral third party.” GOLO, LLC v. 

HighYa, LLC, 310 F. Supp. 3d 499, 505 (E.D. Pa. 2018). In 

short, taking the allegations in Ariix’s complaint as true at 

the pleading stage, we hold that Ariix plausibly alleged that 

the Guide amounts to commercial speech.
ARIIX V. NUTRISEARCH 21

But that does not end our inquiry. Commercial speech 

can lose its commercial character when it is “inextricably 

intertwined” with fully protected speech. Dex Media, 

696 F.3d at 958. If “[n]o law of man or of nature makes it 

impossible” to present the noncommercial aspects of the 

speech without the commercial aspects, then the 

noncommercial speech is not inextricably intertwined with 

the commercial speech. Bd. of Trs. of State Univ. of N.Y. v. 

Fox, 492 U.S. 469, 474–75 (1989) (finding that the home 

economics elements of Tupperware sales presentations were 

not inextricably intertwined with the sales pitches done in 

campus dormitories).

The Guide does include what appears to be fully

protected speech: It has an “informational” part that 

describes the benefits and science of nutritional 

supplements. But the commercial parts of the Guide —

specifically, the allegedly rigged ratings of nutritional 

supplements — are not so connected to this informational 

section to lose their commercial character. On the contrary, 

they seem easily separable. The Guide is described as 

consisting of two individual sections: an informational 

section and a ratings section. Nothing prevents NutriSearch 

from publishing the informational section as a separate 

publication from its ratings. Indeed, the Guide does not gain 

full First Amendment protection simply because it includes 

a distinct summary of scientific ideas as a prelude to its 

supposed product reviews. See Central Hudson, 447 U.S. 

at 562 n.5 (rejecting the notion that speech that merely “links 

a product to a current public debate” gains broad 

constitutional protection given that “many, if not most, 

products may be tied to public concerns with the 
22 ARIIX V. NUTRISEARCH

environment, energy, economic policy, or individual health 

and safety”).9

B. Whether NutriSearch is in commercial competition 

with Ariix.

The next element is whether the defendant is in

commercial competition with the plaintiff. Coastal 

Abstract, 173 F.3d at 735. The district court, though noting 

that this element “is likely in need of revision,” did not reach 

9 On a related note, the defendants argue that we must construe the 

Lanham Act to not apply to the Guide because otherwise this would 

violate their First Amendment rights to speak on matters of public 

concern. But as noted, false advertising claims under the Lanham Act 

apply only to commercial speech. Coastal Abstract, 173 F.3d at 735. 

And the “Constitution [] accords a lesser protection to commercial 

speech than to other constitutionally guaranteed expression,” and “there 

can be no constitutional objection to the suppression of commercial 

messages that do not accurately inform the public about lawful activity.” 

Central Hudson, 447 U.S. at 562–63. See also Bolger, 463 U.S. at 68 

(“A company has the full panoply of protections available to its direct 

comments on public issues, so there is no reason for providing similar 

constitutional protection when such statements are made in the context 

of commercial transactions.”). Because we hold that Ariix plausibly 

alleged that the Guide is commercial speech, there are no First 

Amendment concerns in applying § 1125(a)(1)(B) to the Guide. The 

cases cited by NutriSearch do not apply. See United States v. Alvarez, 

617 F.3d 1198, 1206 n.6 (9th Cir. 2010) (“Here, there is no suggestion 

that the Act targets commercial speech, and therefore we do not address 

commercial speech given the unique way in which it is treated under the 

First Amendment.” (footnote omitted)); Nike, Inc. v. Kasky, 539 U.S. 

654, 679 (2003) (Breyer, J., dissenting from dismissal of writ as 

improvidently granted) (addressing “a private ‘false advertising’ action 

brought on behalf of the State, by one who has suffered no injury” and 

noting that the “delegation of state authority to private individuals 

authorizes a purely ideological plaintiff, convinced that his opponent is 

not telling the truth, to bring into the courtroom the kind of political battle 

better waged in other forums”).
ARIIX V. NUTRISEARCH 23

this question, and the parties agreed that Lexmark Int’l, Inc. 

v. Static Control Components, Inc., 572 U.S. 118 (2014) 

likely abrogated this element. NutriSearch has waived any 

argument on this ground, given that it “agree[d] that a 

plaintiff is no longer required to show that a 

misrepresentation was made by a commercial competitor to 

sue under § 1125(a)(1)(B).” We therefore assume without 

deciding that Ariix need not satisfy this element.

C. Whether the Guide was intended to influence 

consumers to buy the defendants’ goods.

The third element is whether the advertisement or 

publication was issued “for the purpose of influencing 

consumers to buy defendant’s goods or services.” Coastal 

Abstract, 173 F.3d at 735 (emphasis added).

Here, though, the alleged advertising (the Guide) is 

intended to help Usana’s goods, not NutriSearch’s product. 

The district court did not rule on this issue, and the parties 

have not briefed this issue before this court. We thus remand 

for the district court to consider this question in the first 

instance.10

10 The dissent’s analysis of this statutory requirement is well taken. 

But because the parties have not briefed this issue and the district court 

did not rule on it, we remand it for further consideration. In considering 

this question, though, it may be useful to determine whether the 

defendants and Usana had an agency relationship; for example, it might 

be the case that the defendants were acting as agents of Usana and 

therefore had a vested interest in the goods that Usana sold, which might 

be enough to satisfy this element.
24 ARIIX V. NUTRISEARCH

D. Whether the Guide was sufficiently disseminated.

The last element is whether the publication was

sufficiently disseminated to the relevant purchasing public. 

Coastal Abstract, 173 F.3d at 735. To be “sufficiently 

disseminated,” the actions must be “part of an organized 

campaign to penetrate the relevant market,” which typically 

involves “widespread dissemination within the relevant 

industry.” Fashion Boutique of Short Hills, Inc. v. Fendi 

USA, Inc., 314 F.3d 48, 57 (2d Cir. 2002). See also Newcal 

Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1054 (9th Cir. 

2008) (concluding that allegedly false statements were 

sufficiently disseminated because they were made in 

promotional literature distributed to thousands of sales 

accounts).

The Guide plausibly fits this standard, given that Ariix 

alleges that the “professional edition [of the Guide] is 

specifically designed for and marketed to tens of thousands 

of Usana sales representatives, who are told that referring 

prospective customers to the guide is one of the most 

effective ways to sell Usana products.”11

11 The district court mistakenly analyzed whether statements within 

the Guide were sufficiently disseminated as an independent issue from

whether the Guide as a whole was sufficiently disseminated. Because 

the district court concluded that the Guide as a whole was not 

commercial speech, however, that should have ended the inquiry. See 

Dex Media, 696 F.3d at 957–58. If the Guide as a whole is not 

commercial speech, then statements within the Guide could not have 

been commercial advertising.
ARIIX V. NUTRISEARCH 25

II. Ariix has plausibly alleged that the Guide contains 

misrepresentations.

For NutriSearch and MacWilliam to be liable for false 

advertising under the Lanham Act, the Guide must include 

false or misleading representations of fact, not simply 

statements of opinion. See Coastal Abstract, 173 F.3d 

at 730. An actionable statement is “a specific and 

measurable claim, capable of being proved false or of being 

reasonably interpreted as a statement of objective fact.” Id. 

at 731. See also Newcal Indus., 513 F.3d at 1053 (“Thus, a 

statement that is quantifiable, that makes a claim as to the 

‘specific or absolute characteristics of a product,’ may be an 

actionable statement of fact.”). We have explained that “a 

false advertising claim may be based on implied statements” 

as long as those statements are specific and deceptive. 

Prager Univ. v. Google LLC, 951 F.3d 991, 1000 (9th Cir. 

2020). Statements of opinion and puffery, however, are not 

actionable. See Newcal, 513 F.3d at 1053.

The comparative five-star ratings in the Guide are not 

actionable. They are simply statements of opinion about the 

relative quality of various nutritional supplement products. 

Ariix insists that these “star” ratings are factual because the 

Guide purports to rely on scientific and objective criteria. 

But there is an inherently subjective element in deciding 

which scientific and objective criteria to consider. For 

example, publications that rank colleges or law schools 

purportedly rely on objective criteria (e.g., acceptance rates, 

test scores, class size, endowment), but selecting those 

criteria involves subjective decision-making. Ariix also 

points to statements made by MacWilliam asserting that he 

“didn’t want to put our particular bias into it” or that the 

Guide relies on a “higher standard of evidence.” But such 

unquantifiable assertions are “classic, non-actionable 
26 ARIIX V. NUTRISEARCH

opinions or puffery.” Prager Univ., 951 F.3d at 1000 

(finding that lofty but vague statements that appeal to free 

speech and open dialogue are not actionable).

Ariix is on more fertile ground when it refers to the 

disclaimer of independence found in the fifth edition of the 

Guide. The claim that NutriSearch and MacWilliam are not 

associated with any manufacturer listed in the Guide is a 

statement of fact that can be proven true or false.

In addition, the failure to award Ariix a medal 

certification presents specific and measurable statements 

about Ariix. Ariix describes the medal certification as “a 

binary determination” based on two falsifiable criteria: 

compliance with the FDA’s pharmaceutical good 

manufacturing practices and certification of product labels’ 

claims from an approved laboratory. By not awarding Ariix 

a medal certification — despite Ariix being eligible for such 

an award — the Guide falsely implies to consumers that 

Ariix did not comply with the FDA’s GMPs or that it did not 

obtain the appropriate laboratory certification.12 This is 

false, at least based on the allegations in the complaint. 

Apparently, NutriSearch itself admitted that Ariix achieved 

certification pending final laboratory reports and even 

offered to “insert your NutriSearch GOLD Medal of 

Achievement into future printings of the existing guide.” 

Indeed, the complaint alleges that Ariix was the only 

qualified applicant to have followed NutriSearch’s new 

application guidelines, yet it still did not receive the 

12 The district court rejected the notion that compliance with the 

FDA’s GMPs can be a statement of fact because consumers would 

merely “conclude that perhaps a manufacturer did not follow practices 

that the FDA considered good.” Whether Ariix followed those practices, 

however, is a question of fact.
ARIIX V. NUTRISEARCH 27

certification. These implications are specific, measurable, 

and capable of being falsified, so they are actionable 

statements for a false advertising claim under 

§ 1125(a)(1)(B).

CONCLUSION

We find that Ariix’s allegations are enough to overcome 

the defendants’ challenges. Ariix plausibly alleges that the 

Guide is commercial speech, is sufficiently disseminated, 

and contains actionable statements of fact. We make no 

decision, however, about whether Ariix meets the Lanham 

Act’s third element of the definition of “commercial 

advertising or promotion” — i.e., whether the Guide was 

“for the purpose of influencing consumers to buy 

defendant’s goods or services” — and leave this issue for the 

district court to decide in the first instance. We reverse and 

remand to the district court for further proceedings 

consistent with this opinion.

REVERSED AND REMANDED.

COLLINS, Circuit Judge, dissenting:

In my view, Plaintiff-Appellant Ariix, LLC, a 

manufacturer of nutritional supplements, has failed to plead 

sufficient facts to show that it has an actionable claim for 

false advertising under § 43(a)(1)(B) of the Lanham Act 

against Defendants-Appellees NutriSearch Corporation and 

Lyle MacWilliam (“Defendants”). Defendants are 

respectively the publisher and author of the NutriSearch 

Comparative Guide to Nutritional Supplements (“Guide”), a 

guidebook that evaluates and rates hundreds of nutritional 

supplements, and Ariix complains that the Guide’s reviews 
28 ARIIX V. NUTRISEARCH

are really covert advertisements for Usana Health Sciences, 

Inc. (“Usana”), Ariix’s primary competitor. In reversing the 

district court’s dismissal of Ariix’s novel complaint, the 

majority rests on the dubious premise that the Guide

constitutes “commercial speech,” and it remands for 

consideration of additional issues. Because I think it is 

already clear that Ariix cannot state a claim under the 

Lanham Act, I respectfully dissent.

I

The operative complaint in this case asserts a single 

cause of action for false advertising in violation of 

§ 43(a)(1)(B) of the Lanham Act, 15 U.S.C. 

§ 1125(a)(1)(B). That section imposes civil liability on:

[a]ny person who, on or in connection with 

any goods or services, . . . uses in commerce 

. . . any . . . 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.

Id. (emphasis added). To succeed on such a claim, Ariix thus

must plead and prove, inter alia, that Defendants made the 

challenged false or misleading representations “in 

commercial advertising or promotion.” Id. The theory of 

Ariix’s complaint is that, due to MacWilliam’s and 

NutriSearch’s financial relationships with Usana, the Guide, 

or at least portions of it, should be deemed to be “commercial 

advertising or promotion” of Usana’s products within the 

meaning of § 43(a)(1)(B). Ariix alleges that the challenged 

statements in the Guide were false and misleading because 
ARIIX V. NUTRISEARCH 29

Defendants’ ties to Usana were concealed and because the 

Guide falsely stated or implied that its evaluations were 

independent, neutral, and objective when in fact they were 

biased and rigged.1

The majority concludes that, under Bolger v. Youngs 

Drug Products Corp., 463 U.S. 60 (1983), “Ariix plausibly 

alleged that the Guide amounts to commercial speech” for 

First-Amendment purposes, and it reverses the district 

court’s contrary conclusion and remands for further 

proceedings. See Maj. Opin. at 14–16, 21–22, 27. In my 

view, it is unnecessary to reach this broader (and troubling) 

constitutional question, because the Lanham Act applies

1 Some aspects of the complaint appear to rely on the alternative 

theory that Defendants have falsely advertised the Guide itself, rather 

than Usana’s products, but such a theory adds nothing here. The only 

false statements the complaint alleges that Defendants made in 

advertising the Guide were ones repeating the Guide’s claim that its 

ratings and methods were objective and unbiased. But we have stated 

that “advertisements that accurately reprinted false claims contained in 

the advertised works were protected from tort liability to the same degree 

as the underlying works.” Charles v. City of Los Angeles, 697 F.3d 1146, 

1154 (9th Cir. 2012). This theory is thus not independent of, or 

alternative to, Ariix’s theory that the Guide itself contains only lesserprotected commercial speech. Moreover, the complaint fails to plead 

sufficient facts to raise a plausible inference that any injury to Ariix is 

proximately caused by the advertising of the Guide, as opposed to the 

product reviews contained in the Guide. See Lexmark, 572 U.S. at 132–

34 (proximate causation is an essential element of a claim under 

§ 43(a)(1)(B)). Ariix does not, for example, assert that it sells a 

competing guide whose sales suffered by alleged false advertising for 

Defendants’ Guide. The viability of Ariix’s complaint consequently 

turns entirely on whether the Guide itself, or portions of it, constitute 

“commercial advertising or promotion” of Usana’s products within the 

meaning of the Lanham Act.
30 ARIIX V. NUTRISEARCH

only to a subset of commercial speech, and the Guide does 

not fall within the statute’s textual limitations.

A

As the wording of the Act confirms, the “commercial 

advertising or promotion” covered by § 43(a)(1)(B) does not 

“‘encompass all commercial speech.’” Prager Univ. v. 

Google LLC, 951 F.3d 991, 1000 (9th Cir. 2020) (quoting 

Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 

314 F.3d 48, 57 (2d Cir. 2002)). Rather, relying upon the 

test articulated in Gordon & Breach Science Publishers S.A. 

v. American Institute of Physics, 859 F. Supp. 1521 

(S.D.N.Y. 1994), we have held that “commercial advertising 

or promotion” embraces only that subset of “commercial 

speech” that is (1) made “‘by a defendant who is in 

commercial competition with plaintiff’”; (2) “‘for the 

purpose of influencing consumers to buy defendant’s goods 

or services’”; and (3) “‘disseminated sufficiently to the 

relevant purchasing public to constitute “advertising” or 

“promotion” within that industry.’” Coastal Abstract Serv., 

Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 

1999) (quoting Gordon & Breach, 859 F. Supp. at 1536). I 

address each of these three statutory limitations in turn.

As the majority notes, see Maj. Opin. at 22–23,

Defendants expressly concede—correctly, in my view—that 

the first of these three limitations did not survive the 

Supreme Court’s decision in Lexmark International, Inc. v. 

Static Control Components, Inc., 572 U.S. 118 (2014). 

Although it is true that Lexmark specifically declined to 

decide whether the communications at issue in that case 

constituted “commercial advertising or promotion,” id. at 

123 n.1, the Court unanimously and explicitly rejected 

lower-court rulings—including from this court—that had 

limited standing to sue for false advertising under § 43(a) 
ARIIX V. NUTRISEARCH 31

only to competitors of the defendant, id. at 136. The Court 

rejected that limitation because it could not be found in the 

text of the Lanham Act, nor could it be deduced from the 

limitations that are in that text. Id. at 136–39. Given that 

(1) a competitors-only limitation similarly lacks any textual 

grounding in the phrase “commercial advertising or 

promotion,” see Grubbs v. Sheakley Grp., Inc., 807 F.3d 

785, 801 (6th Cir. 2015); Fashion Boutique, 314 F.3d at 58; 

(2) Gordon & Breach derived this atextual limitation from 

its review of pre-Lexmark caselaw, see 859 F. Supp. at 

1532–33; and (3) Lexmark’s emphatic rejection of a 

competitors-only limitation would be wholly undone by 

continued adherence to this aspect of Gordon & Breach, the 

conclusion is inescapable that Lexmark precludes limiting 

“commercial advertising or promotion” only to the 

commercial advertising and promotion of a direct 

competitor. See Handsome Brook Farm, LLC v. Humane 

Farm Animal Care, Inc., 700 F. App’x 251, 257 (4th Cir. 

2017) (“Taking into account Lexmark, the lack of a 

competition requirement in the statute’s false advertising 

prohibition, the fact that our sister circuits adopting the 

competition factor did so before Lexmark, and that the only 

circuit to examine the Gordon & Breach factors postLexmark has rejected the competition factor, we also do not 

require a competitive relationship when determining 

whether a communication is advertising or promotion.”); but 

see Straus v. Angie’s List, Inc., 951 F.3d 1263, 1268–69 & 

n.5 (10th Cir. 2020).

Nothing in Lexmark, however, undermines Gordon & 

Breach’s sufficient-dissemination requirement, which 

properly recognizes that “commercial advertising” typically 

refers to speech that is generally distributed to persons in the 

relevant market. See Advertising, Black’s Law Dictionary 

(11th ed. 2019) (“The action of drawing the public’s 
32 ARIIX V. NUTRISEARCH

attention to something to promote its sale.” (emphasis 

added)). I agree with the majority that, as to the Guide, this 

requirement was adequately pleaded in Ariix’s complaint. 

See Maj. Opin. at 24.

That leaves only Gordon & Breach’s requirement that 

the commercial advertising be “for the purpose of 

influencing consumers to buy defendant’s goods or 

services.” 859 F. Supp. at 1536 (emphasis added); see 

Coastal Abstract, 173 F.3d at 735. That limitation also flows 

from the statutory language and remains valid after Lexmark. 

By referring to representations that a “person” makes “in 

commercial advertising or promotion,” 15 U.S.C. 

§ 1125(a)(1)(B), the Lanham Act clearly refers to 

commercial speech promoting sales of goods that may fairly 

be said to be those of that “person,” i.e., the defendant. We 

do not normally think of third-party product reviews or 

endorsements as being that person’s “commercial 

advertising”—at least when they are not done on behalf of 

the product’s manufacturer or seller. See Bose Corp. v. 

Consumers Union of U.S., Inc., 466 U.S. 485, 504 n.22 

(1984) (“[A] commercial advertiser usually ‘seeks to 

disseminate information about a specific product or service 

he himself provides and presumably knows more about than 

anyone else.’” (emphasis added) (quoting Virginia State Bd. 

of Pharmacy v. Virginia Citizens Consumer Council, Inc., 

425 U.S. 748, 772 n.24 (1976))). Indeed, the Supreme Court 

has “squarely held” that third-party product reviews—

favorable or unfavorable—are fully protected speech. Lowe 

v. SEC, 472 U.S. 181, 210 n.58 (1985) (citing Bose, 466 U.S. 

at 513).

But in stating that the Lanham Act only reaches

advertisements for one’s own goods and services, Gordon & 

Breach and Coastal Abstract did not thereby strictly limit the 
ARIIX V. NUTRISEARCH 33

statute’s reach just to advertising by manufacturers and 

distributors themselves. Thus, for example, when an entity 

acts as an agent of a manufacturer in making a product 

review, then that entity acts on behalf of the manufacturer 

and is in that sense advertising its own product. “[P]aid 

publicists’ speech” about their payor’s products is

commercial speech. United States v. Wenger, 427 F.3d 840, 

848 (10th Cir. 2005); see also Maj. Opin. at 20 (“[P]aid 

promotion is commercial speech.”). In addition, there may 

be other endorsers who have such a direct financial stake in 

specific sales of a product—such as a cut of each sale—that 

it may likewise be fair to say that they are thereby 

advertising their own product. See, e.g., Handsome Brook, 

700 F. App’x at 253, 260–61 (nonprofit organization that 

certified egg producers as “humane” and that received 

5 cents for every 30 dozen eggs sold by certified producers 

was engaged in commercial advertising by promoting such 

certified-producer sales). Each of these scenarios is 

consistent with Gordon & Breach’s common-sense rule that, 

as used in the Lanham Act, “commercial advertising” 

connotes speech endorsing the speaker’s products.

While this speaker’s-product limitation on the scope of 

§ 43(a)(1)(B) may not exactly parallel the outermost 

boundary of what constitutes “commercial speech” under the 

First Amendment, the overlap is considerable. We know 

from Lowe and Bose that the speaker’s connection (or lack

of connection) to a product is, at the very least, a critical 

consideration in determining whether that speaker’s 

comments about that product are “commercial speech” 

under the First Amendment. Moreover, the Lanham Act’s 

bright-line limitation to speech about the speaker’s products 

stays well within constitutional limits and avoids more 

difficult questions, such as the extent to which the more 

expansive conception of “commercial speech” in Bolger 
34 ARIIX V. NUTRISEARCH

may be applied to an entity that is not speaking about its own 

products. In holding that substantive mailers about 

contraceptives nonetheless qualified as “commercial 

speech,” the Court in Bolger addressed only such speech by 

the product manufacturer, see 463 U.S. at 67–68; it did not 

address whether the same looser constitutional standards 

apply when the speech is made by other types of speakers. 

The majority concludes that Bolger does apply in the latter 

context, and its ensuing application of Bolger’s multi-factor 

test to the Guide relies heavily on subjective expectations of 

indirect economic benefits from speech praising another’s 

products. See Maj. Opin. at 17–18. The result is a 

substantial amount of uncertainty as to the scope of First 

Amendment protection for product reviews, a result that I 

find doubtful and disquieting.

In light of these considerations, I am unwilling to 

overlook the fact that the Lanham Act applies only to 

commercial advertising about the speaker’s products. 

Moreover, even though the district court and the parties have 

not directly addressed this limitation, they have done so 

indirectly. The overwhelming focus of both the ruling below 

and the briefing in this court has been on the strength of 

various connections between Defendants and Usana and 

whether those connections are sufficient to render the speech 

in question “commercial speech” for First Amendment 

purposes. Given the very substantial overlap between that 

constitutional “commercial speech” issue and the statutory 

“speaker’s product” issue, I see no reason not to resolve the 

parties’ arguments through their proper statutory lens. And 

the doctrine of constitutional avoidance—which Defendants 

have specifically invoked in this court—confirms that we 

should not disregard any relevant statutory limitation that, 

by either eliminating or narrowing the constitutional 

question we must consider, would lessen any constitutional 
ARIIX V. NUTRISEARCH 35

concerns. Cf. Ashwander v. Tennessee Valley Auth., 

297 U.S. 288, 347 (1936) (Brandeis, J. concurring).

I therefore would not address the broader constitutional 

questions that the majority decides. Instead, in my view, the 

more limited question before us is whether Ariix has alleged 

sufficient facts to show that the Guide, or a subset of it, is 

commercial speech that influences the target audience to 

purchase goods that are, in some viable sense, those of 

Defendants. Ariix has failed to do so.

B

The operative complaint alleges that the Guide, or at 

least portions of it, constitute “promotional material that is 

bought and paid for by Usana” and “coordinated in advance 

of publication.” This allegation sounds superficially 

promising, because it seems to suggest that Defendants may 

have acted on Usana’s behalf or at its direction by secretly 

making, in exchange for compensation, specific changes 

requested by Usana in its own or competitors’ product 

reviews in the Guide. For the reasons explained earlier, I 

would agree that, if Defendants covertly acted subject to 

Usana’s advance direction and control in preparing the 

content of the Guide, then Defendants could in that sense be 

said to be promoting their own products by promoting 

Usana’s products. See supra at 32–33. But Ariix’s 

complaint contains no allegations that would support the 

view that Defendants are Usana’s agents or that Defendants 

altered or placed specific content in the Guide’s reviews at 

Usana’s direction. See Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). Instead, the complaint’s factual allegations 

establish, at most, that Defendants produced biased reviews 

in the craven hope that Usana would then act in ways that 

were economically favorable to Defendants. That is not 

enough.
36 ARIIX V. NUTRISEARCH

The complaint alleges, for example, that when Usana 

was rated “number one” in the Guide, Usana was willing to 

pay MacWilliam as a speaker to promote its products, and it 

also encouraged its sales representatives to purchase the 

Guide. This resulted in “hundreds of thousands of dollars 

per year” of economic benefit to Defendants. But when 

Usana shared the top category with other additional 

companies in 2008, Usana ceased encouraging sales of the 

book and declined to give MacWilliam speaking 

engagements. When MacWilliam inquired about these 

changes, an Usana executive said that “we don’t want to 

stand up and say ‘we’re one of the five best.’ We like the 

fact that we’re number one.” When MacWilliam asked if it 

would “help if Usana is number one in some way,” the 

executive responded, “of course it would help.” The 

complaint alleges that Defendants then came up with a new 

“Editor’s Choice” award and gave it to Usana. Having done 

so, MacWilliam then approached Usana and was paid 

$90,000 for a specific tour for Usana the following summer. 

Defendants thereafter took steps to ensure that Usana would 

retain the top spot by repeatedly revising their criteria “in 

order to weight [them] in Usana’s favor.”

These allegations establish that Usana liked favorable 

reviews and that Usana promoted the Guide and its author 

when the reviews were distinctly superlative and did not do 

so when they were not. That does not raise a plausible 

inference that Defendants, in the Guide, were thereby 

reviewing their own products. That Defendants wrote 

obsequious reviews in the hope that Usana would be pleased 

and buy more Guides or give MacWilliam speaking 

engagements does not make them Usana’s agents in writing 

those reviews. Nor does it establish that they acted on 

Usana’s behalf or subject to its control in doing so. To be 

sure, MacWilliam acted as Usana’s agent when he did paid 
ARIIX V. NUTRISEARCH 37

speaking tours expressly promoting Usana’s products, but 

the complaint does not rest on the theory that this open 

hawking of Usana’s products by MacWilliam violated the 

Lanham Act, and the majority does not endorse any such 

theory here. Rather, the complaint’s theory is that 

Defendants violated the Act by writing a biased Guide that 

favored Usana without disclosing Defendants’ financial ties 

to Usana. But the complaint fails to allege facts showing 

that, in writing the content of the Guide, Defendants had an 

agreement with Usana that would suffice to make 

Defendants into Usana’s “paid publicists.”

The closest that the complaint comes on this score is its 

allegation that, when MacWilliam learned at one point that 

another company was going to beat Usana with a “perfect 

score,” he went to Usana and explained that either Usana 

needed to change its formulas or he needed to change his 

criteria. But the complaint is conspicuously devoid of any 

non-conclusory allegations about how Usana responded. It 

instead alleges, in the very next sentence, that “MacWilliam 

and NutriSearch have since taken extraordinary steps to 

ensure that Usana maintains its preeminent status” 

(emphasis added). The omission is particularly notable, 

because the district court’s order dismissing the previous 

version of the complaint had emphasized Ariix’s failure to 

plead facts that would tend to exclude the possibility that 

Usana simply responded in a lawful and self-interested 

manner to Defendants’ alleged sycophancy. Lacking such 

factual allegations, the operative amended complaint lapses 

into conclusory rhetoric, claiming that Defendants 

“collude[d]” with Usana and have a “symbiotic relationship 

that is profitable” for all of them. But the complaint does not 

contain any well-pleaded factual allegations supporting an 

inference that Defendants acted as Usana’s paid publicists in 

writing favorable reviews of Usana’s products.
38 ARIIX V. NUTRISEARCH

Nor does the complaint allege any other viable 

alternative theory for concluding that Usana’s products are 

in any relevant sense Defendants’ products. Ariix does not 

allege, for example, that Defendants had any kind of “direct

financial interest in sales” of Usana products, Facenda v. 

NFL Films, Inc., 542 F.3d 1007, 1017 (3d Cir. 2008) 

(emphasis added), such as a small cut of each sale, 

Handsome Brook, 700 F. App’x at 259–61. More broadly, 

nothing in the complaint suggests that Defendants 

formulated the Guide with the hope that consumers of 

nutritional supplements would respond by making 

commercial decisions that would directly benefit Defendants 

financially.

* * *

Because Ariix’s complaint fails to allege sufficient facts 

to raise a plausible inference that Defendants were 

advertising their own products when they rated supplements 

in the Guide, Ariix has failed to state a claim for false 

advertising under the Lanham Act with respect to the Guide

or its reviews.

II

In light of the conclusions set forth above, I do not reach 

any of the other issues addressed by the majority. Because 

the district court already allowed an amendment to add 

additional factual allegations addressing the relationship 

between Usana and Defendants, I agree with the district 

court’s conclusion that further amendment would be futile. 

I therefore would affirm the district court’s judgment 

dismissing the complaint with prejudice. I respectfully 

dissent.