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JB & ASSOCS. v. NEBRASKA CANCER COALITION

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JB & Associates, Inc., a Nebraska corporation, 

et al., appellants, v. Nebraska Cancer

Coalition et al., appellees.

___ N.W.2d ___

Filed August 9, 2019. No. S-18-719.

1. Summary Judgment: Appeal and Error. An appellate court will affirm 

a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from those facts and 

that the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

4. Libel and Slander: Negligence. A defamation claim has four elements: 

(1) a false and defamatory statement concerning the claimant, (2) an 

unprivileged publication to a third party, (3) fault amounting to at least 

negligence on the part of the publisher, and (4) either actionability of the 

statement irrespective of special harm or the existence of special harm 

caused by the publication.

5. Libel and Slander. Under a defamation claim, the element which 

requires that the statement must be false and defamatory concerning the 

claimant is more precisely stated as “the statement must be false and 

defamatory of and concerning the claimant.”

6. Libel and Slander: Words and Phrases. A communication is defamatory if it tends so to harm the reputation of another as to lower him or 

her in the estimation of the community or to deter third persons from 

associating or dealing with him or her.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/25/2019 09:07 AM CDT
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7. Libel and Slander: Proof. In order to meet the “of and concerning” 

requirement for a group libel claim, a claimant must show either (1) the 

group or class is so small that the matter can reasonably be understood 

to refer to the claimant or (2) the circumstances of publication reasonably give rise to the conclusion that there is particular reference to 

the member.

8. Libel and Slander. To determine whether a statement is defamatory and 

concerning a claimant, a court must consider the circumstances under 

which the publication of the communication was made, the character of 

the audience and its relationship to the subject of the publication, and 

the effect the publication may reasonably have had upon such audience.

9. ____. In a defamation claim, the recipient of the offending statement 

must understand it as intended to refer to the claimant, but whether the 

speaker intended such reference is immaterial.

10. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

11. Statutes: Intent. In determining the meaning of statutory language, 

its ordinary and grammatical construction is to be followed, unless an 

intent appears to the contrary or unless, by following such construction, 

the intended effect of the provisions would apparently be impaired.

12. Statutes. It is not within the province of a court to read a meaning into 

a statute that is not warranted by the language; neither is it within the 

province of a court to read anything plain, direct, or unambiguous out of 

a statute.

13. ____. A court must attempt to give effect to all parts of a statute, and if 

it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.

14. Libel and Slander. A product disparagement claim under Neb. Rev. 

Stat. § 87-302 (Cum. Supp. 2018) requires that the offending statements 

be “of and concerning” a claimant’s goods or services.

15. ____. Determining whether a statement is “of and concerning” a claimant’s goods or services in a product disparagement claim requires the 

consideration of the circumstances surrounding the statement but also 

requires more than general, industry-wide allegations.

Appeal from the District Court for Douglas County: W. 

Russell Bowie III, Judge. Affirmed.

Gene Summerlin, Brent A. Meyer, and Quinn R. Eaton, of 

Husch Blackwell, L.L.P., for appellants.
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John C. Aisenbrey and Robin K. Carlson, of Stinson, L.L.P., 

and Patrick R. Turner, of Dvorak Law Group, L.L.C., for 

appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

Appellants, JB & Associates, Inc., and several other tanning salons, filed an appeal of the district court’s order dismissing their claims of defamation and product disparagement under Nebraska’s Uniform Deceptive Trade Practices 

Act (UDTPA).1 Appellants challenge the court’s determination that the UDTPA requires reference to a specific product 

of a claimant. Appellants further contend the court failed to 

consider the facts in the light most favorable to their claims 

and erred in finding there was no genuine dispute of material 

fact in determining appellees’ statements were not disparaging 

to appellants’ businesses, products, or services and were not 

defamatorily “of and concerning” appellants. For the reasons 

set forth herein, we affirm.

BACKGROUND

Appellants are tanning salons that, from 2015 to 2017, 

allegedly accounted for between 68 to 71 percent of the known 

tanning salons in the Omaha and Lincoln, Nebraska, markets and approximately 14 to 18 percent of all the entities in 

Nebraska that provide indoor tanning services.

Appellees engage in activities related to cancer education 

and prevention. In 2014, appellee Nebraska Cancer Coalition 

(NCC), led by Drs. Alan G. Thorson and David J. Watts, 

started a campaign named “The Bed is Dead” to educate 

the public on the dangers of indoor tanning. NCC maintains 

for this campaign the website “www.thebedisdead.org.” When 

1 See Neb. Rev. Stat. §§ 87-301 to 87-306 (Reissue 2014 & Cum. Supp. 

2018).
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the website went live in March 2014, the following statements were included on its “LEARN THE FACTS ABOUT 

TANNING” page:

Statement 1: “Tanning Causes More Cancers than 

Cigarettes[.]”

Statement 2: “Young women are hit hardest. New 

cases of malignant melanoma have soared 8-FOLD in 

young women since 1970, TWICE AS FAST as in young 

men!”

Statement 3: “Tanning before age 35 raises your risk of 

melanoma by nearly 60%.”

Statement 4: “Tanning beds have been proven to cause 

skin cancer.”

Statement 5: “Your skin remembers EACH tanning 

session. Just one indoor tanning session increases your 

risk of melanoma by 20% and each additional use during 

the same year boosts risk by another 2%.”

Statement 6: “Malignant melanoma is now the most 

common cancer in young adults aged 25-29 years, second 

most common in young women aged 30-34 years and 

in teenagers.”

Statement 7: “Ultraviolet radiation and UV tanning 

devices are rated by the Food and Drug Administration 

(FDA) and the World Health Organization (WHO), among 

other agencies, as carcinogenic to humans (type-1 carcinogens), in the highest risk category alongside arsenic, 

radon, tobacco, and asbestos.”

Statement 8: “One person dies of melanoma every hour 

in the U.S.”

Statement 9: “Malignant melanoma is increasing more 

rapidly than any other cancer.”

Statement 10: “Tanning is addictive. One study produced withdrawal symptoms in frequent tanners with 

narcotic antagonists such as are used in emergency rooms. 

Studies find higher rates of alcohol, tobacco, and drug use 

in females that tan.”
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Statement 11: “Of melanoma cases among patients 

under 30 who had tanned indoors, 76 percent were attributable to tanning bed use in a recent well-designed and 

conducted study.”

Statement 12: “Vitamin D is important, but exposure to 

UV more than about 10 minutes actually starts to break 

down the pre-vitamin D in the skin.”

Statement 13: “There is no such thing as a ‘safe tan.’ 

Any color the skin develops is a direct result of DNA 

damage to the skin cells.”

Additionally, under a page titled “FACTS,” the website stated:

. . . Tanning facilities do not require a license to operate in Nebraska.

. . . In 2010, the U.S. Federal Trade Commission 

ordered the Indoor Tanning Association to cease false 

advertising claims: 1) that tanning is safe or healthy, 2) 

that tanning poses no danger, and 3) that tanning does not 

increase risk of skin cancer.

. . . Yet, a congressional investigative report two years 

later found:

. . . Tanning Salons market their product to teenagers.

. . . Nine out of ten salons DENIED KNOWN RISKS 

of indoor tanning.

Under a “TOOLKIT” page on the website, NCC also encouraged 

visitors to promote the page “at your organization or school.”

NCC promoted the website in publications, social media, 

and advertisements. NCC also utilized dermatologist partners 

who visited Omaha schools and encouraged students to go to 

the website. In the other publications, NCC made the following 

additional statements to support the campaign:

Statement 14: “Evidence shows that exposure to artificial UV light before age 30 increases a person’s risk of 

melanoma by 75%.”

Statement 15: “In a recent study, 76% of melanomas 

diagnosed in people aged 18-29 were caused by indoor 

tanning.”
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Statement 16: “Artificial sunlight — the kind found in 

tanning beds — . . . carries a significantly higher risk of 

skin cancer.”

Statement 17: “Indoor tanning is thought to cause 

170,000 skin cancers annually.”

Statement 18: “Worse, to get a fast tan, many tanning 

beds emit ultraviolet (UV) radiation that far exceeds UV 

in natural sunlight. Human evolution has not equipped 

even tanned skin to withstand such extreme UV exposures 

without injury.”

Statement 19: “You may be thinking that just a few 

indoor tanning sessions won’t hurt — that they can’t 

really be that harmful. But science shows that indoor tanning is much more dangerous than previously assumed, 

especially for young people. A single indoor UV tanning 

exposure as a young person is linked to an alarming 34-59 

percent increase in the risk of melanoma.”

Statement 20: “Not only that, but the skin remembers 

every single tanning session. Melanoma risk increases 

almost 2 percent for each additional indoor tanning exposure in a given year.”

Statement 21: “Melanoma is now the number one cancer in the U.S. among young adults aged 25-29 years, and 

is one of the most common cancers of teenagers.”

Statement 22: “Young women make up 70 percent of 

the 1 million people who tan indoors every day in the 

United States. So it is not surprising that a Mayo Clinic 

study showed that in recent years melanoma has increased 

twice as fast in young women as in young men.”

According to managing staff and employees of appellants, 

customers asked questions about appellants’ facilities and the 

dangers of indoor training after visiting appellees’ The Bed is 

Dead website.

In July 2015, based upon the statements from the website 

and supporting publications quoted above, appellants filed 

a complaint against appellees. This complaint alleged (1) 
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violations of the UDTPA for deceptive trade practices and 

product disparagement and (2) defamation for making statements designed to destroy appellants’ businesses, reputations, 

and livelihood.

Appellees submitted a motion for summary judgment in 

January 2018 seeking dismissal of these claims. In the motion, 

appellees argued that there were no genuine issues of material 

fact and that appellees were entitled to judgment as a matter 

of law.

Following a hearing, the district court granted appellees’ 

motion and dismissed appellants’ claims. In addressing the 

deceptive trade practices claim, the court noted the UDTPA 

states that “[a] person engages in a deceptive trade practice 

when, in the course of his or her business, vocation, or occupation, he or she . . . [d]isparages the goods, services, or business of another by false or misleading representation of fact.”2

The court determined this language requires reference to a 

“specific product.” Because the statements on which appellants’ claims are based address the tanning bed industry as a 

whole instead of appellants’ specific products, the court found 

appellants failed to offer evidence that NCC’s statements 

“‘disparaged the goods, services, or business of another,’” 

given the broad application of the statements and the generality with which the statements discuss the potential dangers 

of tanning.

On the defamation claim, the court listed the elements to 

prove defamation as (1) a false and defamatory statement 

concerning the plaintiff, (2) an unprivileged publication to a 

third party, (3) fault amounting to at least negligence on the 

part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special 

harm caused by the publication. The court held that appellants failed to meet the first element and prove the statements 

were “‘of [and] concerning’” appellants. In so holding, the 

2 § 87-302(a)(9).
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court referenced the Restatement (Second) of Torts3 and its 

explanation that a group libel claim can meet the “of and concerning” requirement if either the group is so small that the 

matter can reasonably be understood to refer to the member 

or the circumstances of publication reasonably give rise to the 

conclusion that there is a particular reference to the member. 

Because the court found appellees’ statements did not specifically reference appellants or their salons and instead were 

directed at tanning beds, tanning devices, and indoor tanning 

generally, the court determined appellants failed to show 

either option under the test for a group libel claim to meet the 

“of and concerning” requirement.

ASSIGNMENTS OF ERROR

Appellants assign, restated and reordered, that the district 

court erred in dismissing appellants’ claims of defamation and 

product disparagement by (1) finding the evidence did not 

raise a genuine dispute of material fact on whether appellees’ 

statements were “of and concerning” appellants for purposes 

of defamation; (2) holding that a UDTPA claim for deceptive 

trade practices and product disparagement requires a statement 

to reference a specific product of appellants; and (3) finding 

the evidence did not raise a genuine dispute of material fact 

on whether appellees’ statements disparaged appellants’ businesses, products, or services.

STANDARD OF REVIEW

[1] An appellate court will affirm a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as a 

matter of law.4

3 See Restatement (Second) of Torts § 564A (1977).

4 Kaiser v. Union Pacific RR. Co., ante. p. 193, 927 N.W.2d 808 (2019).
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[2] In reviewing a summary judgment, an appellate court 

views the evidence in the light most favorable to the party 

against whom the judgment was granted and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence.5

[3] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below.6

ANALYSIS

Defamation

We first address appellants’ assignments concerning the dismissal of their defamation claim and the court’s finding that 

there was no genuine dispute of material fact. Specifically, 

appellants claim the circumstances surrounding the NCC’s 

statements indicate that they were concerning appellants.

[4-6] A defamation claim has four elements: (1) a false and 

defamatory statement concerning the claimant, (2) an unprivileged publication to a third party, (3) fault amounting to at 

least negligence on the part of the publisher, and (4) either 

actionability of the statement irrespective of special harm or 

the existence of special harm caused by the publication.7 The 

element which requires that the statement must be false and 

defamatory concerning the claimant is more precisely stated as 

“the statement must be false and defamatory of and concerning the claimant.”8

 A communication is defamatory if it tends 

5 Id.

6 Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).

7 Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 

(2015).

8 See, Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597 

(1966); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 

L. Ed. 2d 686 (1964); Deaver v. Hinel, 223 Neb. 529, 391 N.W.2d 128 

(1986).
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so to harm the reputation of another as to lower him or her in 

the estimation of the community or to deter third persons from 

associating or dealing with him or her.9 In the instant case, the 

district court determined appellees’ statements did not meet 

the “of and concerning” requirement of the first element—

that the statements were false and defamatory and concerning 

the claimant.

[7] Appellants’ defamation claim is a group libel claim in 

that the offending statements concern a large group or class 

of persons or businesses. Under the Restatement (Second) of 

Torts, in order to meet the “of and concerning” requirement 

for a group libel claim, a claimant must show either (1) the 

group or class is so small that the matter can reasonably be 

understood to refer to the claimant or (2) the circumstances of 

publication reasonably give rise to the conclusion that there 

is particular reference to the member.10 Appellants allege the 

statements fall under the second option.

[8,9] To determine whether a statement is defamatory and 

concerning a claimant, a court must consider the circumstances 

under which the publication of the communication was made, 

the character of the audience and its relationship to the subject 

of the publication, and the effect the publication may reasonably have had upon such audience.11 The recipient of the 

offending statement must understand it as intended to refer to 

the claimant, but whether the speaker intended such reference 

is immaterial.12

Here, there were insufficient facts to show recipients of 

NCC’s statements understood or should have understood 

the statements referred or were intended to refer to appellants. The offending statements did not name or mention any 

9 See id.

10 Restatement, supra note 3.

11 Matheson v. Stork, 239 Neb. 547, 477 N.W.2d 156 (1991). See, also, 

Moats v. Republican Party of Neb., 281 Neb. 411, 796 N.W.2d 584 (2011).

12 See Restatement (Second) of Torts § 564, comment a (1977).
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of appellants, and in fact, none of the statements addressed 

“tanning salons” specifically. Instead, these allegedly defamatory statements addressed tanning and indoor tanning 

generally.

Additionally, nothing in the content surrounding NCC’s 

statements mentioned appellants or implied that the statements were targeted at appellants. The Bed is Dead campaign 

was statewide and was not limited to the Omaha and Lincoln 

areas. The website is available to anyone in Nebraska and 

elsewhere. Additionally, the offending statements could apply 

to anyone tanning indoors or outdoors irrespective of their 

state residency. Regardless of what internal documents said, 

which were unavailable to recipients of NCC’s statements, 

nothing in the surrounding content implied NCC was targeting 

appellants’ tanning salons, specific locations in the state, or 

appellants’ specific customer base.

Appellants contend that affidavits of their managing staff 

and employees demonstrate that customers understood NCC’s 

statements to refer to appellants. Specifically, these affidavits 

asserted customers asked questions about appellants’ facilities and the dangers of indoor tanning after visiting appellees’ 

The Bed is Dead website. However, the affidavits do not 

state that the customers told them they believed the statements were about appellants specifically and instead indicate 

the customers thought the statements were aimed at indoor 

tanning in general. Additionally, contrary to appellants’ argument, NCC’s utilizing dermatological partners who visited 

Omaha schools and encouraged students to go to the website 

also does not indicate the recipients of the offending statements would have understood the statements to be targeted 

at appellants.

Based upon all of the above, there were no genuine disputes 

as to any material facts on appellants’ defamation claim and 

appellees were entitled to judgment as a matter of law. Thus, 

the district court did not err in granting appellees’ motion and 

dismissing appellants’ defamation claim.
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Deceptive Trade Practices

Under UDTPA

Appellants’ other assignments claim the district court erred 

in requiring the offending statements reference a specific 

product or service to be actionable under the UDTPA and 

finding that there was no genuine dispute as to any material 

facts and that appellees were entitled to judgment as a matter 

of law.

Section 87-302(a)(9) states that “[a] person engages in a 

deceptive trade practice when, in the course of his or her business, vocation, or occupation, he or she . . . [d]isparages the 

goods, services, or business of another by false or misleading representation of fact.” Section 87-303(a) describes that 

a person likely to be damaged by the alleged deceptive trade 

practice may seek an injunction against the person disparaging 

the petitioner’s goods, services, or business. Section 87-303(a) 

further explains that “[p]roof of monetary damage, loss of profits, or intent to deceive is not required.”

Appellants and appellees offer different interpretations for 

§ 87-302(a)(9). Appellants argue that the plain language of 

§ 87-302(a)(9) only requires the offending statement result in 

disparagement of the goods, services, or business of a claimant 

and that there is no requirement regarding a level of specificity to identify the claimant within the statement. Appellees, in 

turn, argue the use of “of another” requires that any statement 

must be tied to the specific goods, services, or business of the 

claimant and go beyond a general proposition applying to all 

goods, services, or business within an industry.

[10-13] Statutory language is to be given its plain and 

ordinary meaning, and an appellate court will not resort to 

interpretation to ascertain the meaning of statutory words 

which are plain, direct, and unambiguous.13 A statute’s ordinary and grammatical construction is to be followed, unless 

an intent appears to the contrary or unless, by following such 

13 In re Estate of Fuchs, 297 Neb. 667, 900 N.W.2d 896 (2017).
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construction, the intended effect of the provisions would apparently be impaired.14 It is not within the province of a court 

to read a meaning into a statute that is not warranted by the 

language; neither is it within the province of a court to read 

anything plain, direct, or unambiguous out of a statute.15 A 

court must attempt to give effect to all parts of a statute, and if 

it can be avoided, no word, clause, or sentence will be rejected 

as superfluous or meaningless.16

The word “disparage” is defined by Black’s Law Dictionary 

as “1. To speak slightingly of; to criticize (someone or something) in a way showing that one considers the subject of 

discussion neither good nor important. 2. To degrade in estimation by disrespectful or sneering treatment.”17 While “of 

another” is not defined under the statute, the plain language of 

§ 87-302(a)(9) and the definition of “disparage” require that the 

statement be specific enough to the claimant’s goods, services, 

or business that the statement could actually be understood to 

concern those items and it could be determined whether the 

statement represented false or misleading facts.

Under common-law defamation, trade libel, and product 

disparagement cases, other jurisdictions have similarly required 

libelous statements to concern a claimant’s goods and services.18 These jurisdictions have held that though the offending 

statements need not explicitly refer to another’s product, the 

statements must be “of and concerning” a claimant’s products 

14 Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717 

(2019).

15 In re Estate of Fuchs, supra note 13.

16 Patterson, supra note 14.

17 Black’s Law Dictionary 570 (10th ed. 2014).

18 Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186 (3d Cir. 1998); 

QSP, Inc. v. Aetna Cas. & Sur. Co., 256 Conn. 343, 773 A.2d 906 (2001); 

HipSaver, Inc. v. Kiel, 464 Mass. 517, 984 N.E.2d 755 (2013); Wolfe v. 

Gooding & Company, Inc., No. 14-CV-4728, 2017 WL 3977920 (D.N.J. 

Sept. 11, 2017) (unpublished opinion).
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in that a reasonable person who saw or read the statements 

and was familiar with the circumstances reasonably believed 

that the statements referred to the claimant’s specific products 

or services.19 Such holdings are relevant to our interpretation of product disparagement under § 87-302, because the 

Legislature’s use of the “of another” language indicates an 

incorporation of the same “of and concerning” element present in common-law actions aimed at unfair and deceptive 

trade practices. While we reach this conclusion regarding the 

meaning of the “of another” language independent of legislative history, we note that contrary to appellants’ suggestion that 

such an interpretation conflicts with the reasons motivating 

the enactment of this provision, legislative history suggests 

that the enactment of the UDTPA was not intended to vary 

from existing common-law actions of unfair and deceptive 

trade practices.20

Additionally, the Seventh Circuit Court of Appeals, utilizing Illinois law, applied the “of and concerning” requirement to the Uniform Deceptive Trade Practices Act model, 

similar to § 87-302. In Brown & Williamson Tobacco Corp. v. 

Jacobson,

21 the Seventh Circuit addressed a product disparagement claim under the Illinois statute brought by a cigarette 

manufacturer for statements made during a newscast regarding 

cigarettes. In dismissing the disparagement claim and holding 

that disparagement under the Illinois statute requires more than 

general, industry-wide statements, the court reasoned, “The 

[defendant’s] broadcast does not suggest that [the plaintiff’s] 

cigarettes are defective, or any more unhealthful than other 

brands of cigarettes . . . .”22 This holding is relevant to our 

19 See id.

20 Judiciary Committee Hearing, L.B. 641, 80th Leg., 9-11 (Apr. 14, 1969).

21 Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262 (7th Cir. 

1983).

22 Id. at 274.
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analysis, because the Legislature expressly provided that the 

UDTPA “shall be construed to effectuate its general purpose to 

make uniform the law of those states which enact” the Uniform 

Deceptive Trade Practices Act model.23

[14,15] Accordingly, considering the use of “of another” in 

§ 87-302(a)(9), the definition of “disparage,” the requirements 

of product disparagement claims under the common law, and 

interpretation of disparagement under the Uniform Deceptive 

Trade Practices Act model, we hold that a product disparagement claim under § 87-302 requires that the offending statements be “of and concerning” a claimant’s goods or services. 

Determining whether a statement is “of and concerning” a 

claimant’s goods or services requires the consideration of the 

circumstances surrounding the statement but also requires more 

than general, industry-wide allegations.24

Appellants cite to Auvil v. CBS 60 Minutes25 for their 

proposition that a general reference to goods and services is 

sufficient to disparage a business’ specific goods and services 

under § 87-302. However, the Auvil decision is not at odds 

with our holding detailed above. The court in Auvil found that 

a statement directed at a chemical used in conjunction with 

apple farming and accompanying pictures of red apples was 

sufficient to identify that a television segment was directed 

at Washington State apple growers to bring a disparagement 

claim.26 The court based its decision on the proposition that 

it was commonly known “throughout the country, if not the 

world, that Washington is the prime producer of red apples.”27

The court in Auvil looked at the circumstances surrounding 

23 Neb. Rev. Stat. § 87-305 (Reissue 2014).

24 See, Brown & Williamson Tobacco Corp., supra note 21; Moats, supra

note 11; Matheson, supra note 11.

25 Auvil v. CBS 60 Minutes, 800 F. Supp. 928 (E.D. Wash. 1992).

26 Id.

27 Id. at 930.
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the broadcast, the fact that red apples were synonymous with 

Washington apples, and the understanding that disparagement 

claims concerned the product instead of the individual to 

determine the statements were made concerning the claimants’ products.

In the instant case, NCC’s statements were not “of and 

concerning” appellants or their products. As discussed in the 

previous section, the statements do not mention appellants 

or identify products or services of appellants beyond general 

statements on the risks of indoor tanning and tanning overall. 

Additionally, nothing in the content surrounding the statements mentioned appellants or indicated the statements were 

concerning appellants’ specific goods and services. Appellants 

make several arguments involving internal communications 

within NCC to support their argument that NCC was attempting to target them, but these documents were unavailable to 

the public and could not lead readers of the website to understand NCC’s statements were targeting appellants’ services 

and products.

Furthermore, appellants’ argument that they occupy the 

majority of the indoor tanning facilities in the Omaha and 

Lincoln areas is without merit. The website and the statements 

contained therein were available and applicable nationwide, 

and appellees’ The Bed is Dead campaign describes itself as 

a statewide operation, which is not limited to the Omaha and 

Lincoln areas. Additionally, the statements were applicable to 

other indoor tanning options not included in appellants’ market 

share analysis—including health clubs, apartments, and condominiums—and to outdoor tanning, as well.

Based upon all of the above, there were no genuine disputes 

as to any material facts on appellants’ product disparagement 

claim and appellees were entitled to judgment as a matter 

of law. Thus, the district court did not err in granting appellees’ motion and dismissing appellants’ product disparagement claim.
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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

JB & ASSOCS. v. NEBRASKA CANCER COALITION

Cite as 303 Neb. 855

CONCLUSION

The district court did not err in finding that there were no 

genuine disputes as to any material facts and that appellees 

were entitled to summary judgment on appellants’ defamation 

claim. Additionally, a product disparagement claim requires 

that the statement be “of and concerning” a claimant’s goods 

or services, which can be determined from consideration of 

the circumstances surrounding the statement but also requires 

more than general, industry-wide allegations. Accordingly, 

there were no genuine disputes as to any material facts and 

the district court did not err in dismissing appellants’ product 

disparagement claim.

Affirmed.