F I L E D

United States Court of Appeals

Tenth Circuit

SEP 10 1999

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

COTTRELL, LTD., a Colorado

corporation,

Plaintiff-Appellant,

v.

BIOTROL INTERNATIONAL, INC.,

a Delaware corporation, and

PRO-DEX, INC., a Colorado

corporation,

Defendants-Appellees.

No. 97-1475

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 97-S-1479)

Howard J. Beck (Douglas Jaffe with him on the briefs), Beck and Cassinis, P.C.,

Aurora, Colorado.

Richard A. Johnson (Julie S. Schoenfeld with him on the brief), Porzak Browning

& Johnson LLP, Boulder, Colorado.

Before EBEL, BRISCOE and LUCERO, Circuit Judges.

EBEL, Circuit Judge.
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Cottrell, Ltd. (“Cottrell”) filed a Lanham Act claim against Pro-Dex, Inc.

(“Pro-Dex”), and its wholly-owned subsidiary, Biotrol International, Inc.

(“Biotrol”), alleging that they made false and misleading representations with

regard to their hard surface cleaning product, “Birex.” The district court granted

the defendants-appellees’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). 

We now reverse and remand.

BACKGROUND

The parties to this litigation manufacture, advertise, and market hard

surface cleaners and disinfectants for use in medical and dental facilities. 

Because the parties’ products are antimicrobial pesticides, the cleaners and

disinfectants are regulated by the Environmental Protection Agency (“EPA”),

which must review and approve the text of all labels (“label claims”) on or

accompanying the products before they can be sold. See 7 U.S.C. §§ 136 & 136a. 

As such, manufacturers and sellers of hard surface cleaners and disinfectants are

forbidden by law from using label claims which have not been approved by and

registered with the EPA. See 7 U.S.C. §§ 136a(c)(1) & 136j(a)(1)(B) (“it shall

be unlawful for any person . . . to distribute, sell, offer for sale, hold for sale,

ship, deliver for shipment, or receive and (having so received) deliver or offer to

deliver, to any person . . . any registered pesticide if any claims made for it as a
1Title 7 U.S.C. §§ 136-136y (“Federal Insecticide, Fungicide, and

Rodenticide Act” or “FIFRA”) and 40 C.F.R. §§ 152 provide a detailed regulatory

framework for registering pesticides (including antimicrobial pesticides like the

parties’ hard surface cleaners and disinfectants), including provisions for

approving pesticide labels and claims made therein. FIFRA prohibits, inter alia,

the distribution, sale, receipt or delivery of pesticides which have not complied

with the registration requirements, see 7 U.S.C. § 136a(a), and makes unlawful

selling “any registered pesticide if any claims made for it as a part of its

distribution or sale substantially differ from any claims made for it as a part of the

statement required in connection with its registration under section 136a of this

title,” 7 U.S.C. § 136j(a)(1)(B). 

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part of its distribution or sale substantially differ from any claims made for it as a

part of the statement required in connection with its registration under section

136a of this title,” which requires pesticide registrants to file with the EPA

administrator “a complete copy of the labeling of the pesticide, a statement of all

claims to be made for it, and any directions for its use,” in order to qualify for

approval).1

Cottrell sued Pro-Dex and Biotrol (collectively “defendants-appellees”),

claiming that representations made by defendants-appellees regarding their hard

surface cleaner and disinfectant, which is sold under the name “Birex,” violated

section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Specifically, Cottrell

alleged in its complaint that the defendants-appellees’ label claims were

“violative of EPA clearance” and “[a]s such . . . false,” and that the label claims

deceptively imply that “EPA approval or clearance has been obtained.” The
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defendants-appellees filed a motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6), which the magistrate judge recommended granting, stating:

Plaintiff’s allegations that the claims are false are based on the

allegation that the claims violate the EPA clearance of the product. 

The complaint does not specifically allege, however, that

Defendants’ claim that the efficacy of Birex continues for seven days

after mixing is actually false or misleading. Thus, resolution of

Plaintiff’s claims would involve the determination of whether the

claim that the efficacy of the product continues for seven days after

mixing violates the EPA clearance. Similar to the Mylan [Labs., Inc.

v. Matkari, 7 F.3d 1130 (4th Cir. 1993)] case, for purposes of a

Lanham Act misrepresentation claim, it cannot be implied from the

fact that the product has been placed on the market that the EPA has

approved Defendants’ label claims. An affirmative representation is

required. Mylan, 7 F.3d at 1139. Based on the above case law,

absent an allegation that the Defendants’ claim regarding the efficacy

of Birex is false, Plaintiff has failed to state a claim under section

43(a) of the Lanham Act.

Cottrell objected to the magistrate judge’s recommendation, but “agreed

that an expansion of the existing factual predicate for its claims is warranted.” 

Accordingly, Cottrell filed a motion for leave to file an amended complaint. 

Cottrell’s proposed amended complaint alleged that the defendants-appellees

affirmatively misrepresented that the EPA gave “clearance and/or approval” to

claims made in Birex literature that “proper use is to discard weekly,” and that

“Biotrol’s product is not known to be effective for that period of time [one week],

nor has it been demonstrated to be effective under those use conditions [weekly

discarding].”
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The district court accepted the magistrate judge’s recommendation to grant

the defendants’ motion to dismiss and denied Cottrell’s motion for leave to file an

amended complaint despite recognizing that “Fed. R. Civ. P. 15(a) requires leave

to amend be given freely,” on the ground “that the Proposed Amended Complaint

suffers from the same defect as the original complaint.” The district court

identified the “defect” it found in Cottrell’s original and proposed amended

complaint as follows: “[T]his complaint seeks a determination whether the label

claims [of the defendants] violate the EPA clearance. Resolution of the

Plaintiff’s complaint would require the court to interpret and apply regulations

that are exclusively within the province of the EPA.”

Cottrell now appeals the district court’s grant of the motion to dismiss and

denial of its motion for leave to file an amended complaint. We reverse and

remand.

DISCUSSION

Whether the District Court Erred in Dismissing Cottrell’s Lanham Act

Claim.

A. Standard of Review

 “We review de novo a district court’s dismissal of a cause of action for

failure to state a claim upon which relief can be granted.” Chemical Weapons

Working Group, Inc. v. United States Dep’t of the Army, 111 F.3d 1485, 1490
2Because we reverse the district court’s dismissal of Cottrell’s original

complaint, we do not reach issues concerning the proposed amended complaint. 

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(10th Cir. 1997). “We uphold a dismissal under Fed. R. Civ. P. 12(b)(6) only

when it appears that the plaintiff can prove no set of facts in support of the claims

that would entitle him to relief, accepting the well-pleaded allegations of the

complaint as true and construing them in the light most favorable to the plaintiff.” 

Yoder v. Honeywell Inc., 104 F.3d 1215, 1224 (10th Cir.) (quotations omitted),

cert. denied, 118 S. Ct. 55 (1997). “[T]he Federal Rules of Civil Procedure erect

a powerful presumption against rejecting pleadings for failure to state a claim.” 

Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359

(10th Cir. 1989) (quotations omitted). Granting defendant’s motion to dismiss is

“a harsh remedy which must be cautiously studied, not only to effectuate the spirit

of the liberal rules of pleading but also to protect the interests of justice.” Id.

(quotations omitted).

B. Merits

Cottrell argues that both its original and proposed amended complaint

properly alleged all the elements necessary to make out a claim under the Lanham

Act.2 Section 43(a) of the Lanham Act as amended reads, in relevant part: 

(1) Any person who, on or in connection with any goods or

services, or any container for goods, uses in commerce any word,
3The Act “principally provides for two distinct causes of action: false

designation of origin or source, known as ‘product infringement,’ and false

description or representation, known as ‘false advertising.’” Resource Developers,

Inc. v. Statute of Liberty-Ellis Island Found., Inc., 926 F.2d 134, 139 (2d Cir.

1991) (quoting Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d 186, 188 (2d

Cir. 1980)); see also Stanfield v. Osborn Indus., Inc., 52 F.3d 867, 873 (10th Cir.

1995) (“There are two distinct bases of liability under section 1125: (1) false

representation in advertising concerning the qualities of goods (false advertising

claims); and (2) false representations concerning the origin or endorsement of

goods (false association or product infringement claims).”).

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term, name, symbol, or device, or any combination thereof, or any

false designation of origin, false or misleading description of fact, or

false or misleading representation of fact, which —

 (A) is likely to cause confusion, or to cause mistake, or to

deceive as to the affiliation, connection, or association of such

person with another person, or as to the origin, sponsorship, or

approval of his or her goods, services, or commercial activities

by another person, or

 (B) 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, 

shall be liable in a civil action by any person who believes that he or

she is or is likely to be damaged by such act. 

15 U.S.C. § 1125(a). Thus, as the district court recognized, in order to state a

claim under § 43(a) of the Lanham Act,3

 a plaintiff must allege: (1) that

defendant made material false or misleading representations of fact in connection

with the commercial advertising or promotion of its product, see Abbott Labs. v.

Mead Johnson & Co., 971 F.2d 6, 13 (7th Cir. 1992) (“Section 43(a)(2) of the
4Cottrell’s complaint sufficiently alleged the other three elements. In

paragraph 20 of the complaint, Cottrell alleged misrepresentations in commerce. 

(“The misrepresentations made by the Defendants Biotrol and Pro-Dex have been

made in commerce.”) In paragraph 16, Cottrell alleged that “customers have been

actually deceived by advertising and promotional materials published by and

continuing to be published by Biotrol and Pro-Dex [by falsely implying EPA

approval of the label].” Finally, in paragraphs 19 and 21, Cottrell alleged

sufficient injury. (“Defendants Biotrol and Pro-Dex’s material misrepresentations

injure Cottrell by causing Cottrell to lose customers and sales, resulting in

business losses . . . .”); (“The actions of Defendants Biotrol and Pro-Dex have and

are likely to continue to cause Cottrell irreparable harm.”)

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[Lanham] Act prohibits the use of false or misleading statements or

representations of fact in commercial advertising, and establishes a private

remedy for any violation thereof.”); Sandoz Pharms. v. Richardson-Vicks, Inc.,

902 F.2d 222, 231 (3d Cir. 1990); (2) in commerce; (3) that are either likely to

cause confusion or mistake as to (a) the origin, association or approval of the

product with or by another, or (b) the characteristics of the goods or services; and

(4) injure the plaintiff. See generally Charles E. McKenney & George F. Long

III, Federal Unfair Competition: Lanham Act § 43(a), § 6 (11th release 1998).

The dispute in this case involves only whether the plaintiff properly alleged

the first requirement.4 As the Second Circuit has explained, “Section 43(a) of the

Lanham Act encompasses more than literal falsehoods,” because otherwise,

“clever use of innuendo, indirect intimations, and ambiguous suggestions could

shield the advertisement from scrutiny precisely when protection against such

sophisticated deception is most needed.” American Home Prods. Corp. v.
5We note that on appeal the defendants-appellees assert that: “In fact, Birex

is not approved for a mix and use daily label claim, it is approved for a claim that

states ‘[a]s solution becomes dirty, discard and replace with a fresh one . . . .’” 

And, in a motion for attorney’s fees filed by defendants-appellees in the district

court, defendants-appellees attached as an exhibit Birex’s approved label which

appears to support defendants-appellees’ position. However, because this case

comes to us on appeal from 12(b)(6) dismissal for failure to state a claim on

which relief can be granted, we must accept all the well-pleaded allegations of the

(continued...)

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Johnson & Johnson, 577 F.2d 160, 165 (2d Cir. 1978). To assess the truth or

falsity of these latter, more amorphous, misleading statements, “the courts favor

testing by consumer reaction surveys, but have also found falsity based on their

own independent reaction and the reaction of witnesses testifying before the

court, including testimony based on test results, consumer surveys, complaints

received, allegations of more than a few instances of misrepresentation, and

otherwise.” McKenney & Long, supra, § 6.03[2], at 6-27 to 6-28 (citing cases)

(footnotes omitted). Notwithstanding the various methods for testing the

accuracy of allegedly misleading advertising, we reiterate that when considering a

motion for dismissal under 12(b)(6), we must assume all facts as alleged.

In its original complaint, Cottrell alleged that the defendants-appellees

made material false or misleading representations, as follows:

12. Standardized “label claims” as to efficacy for products

such as Birex include how long a solution may be used after mixing

and dilution. Birex’s approved and cleared “label claims” require

that it be “mixed and used daily” according to the approved labels on

file with the EPA.5
5

(...continued)

complaint as true.

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13. Contrary to the provisions and requirements of its “label

claims” as approved by the EPA, Biotrol, through its product

information material and its sales force, has and continues to assert

in the context, inter alia, of commercial advertising or promotion

that the efficacy of Birex continues for seven days after mixing.

15. Biotrol, under the direction and control of Pro-Dex, has

continued to advertise, market and sell its Birex product under that

and various other names with the full knowledge that the claims

made are violative of EPA clearance. As such, these Defendants’

advertising and promotional materials and claims as included with

the products themselves, as well as on product information sheets and

through sales persons, are false.

16. The Defendants Biotrol and Pro-Dex’s material

representations in commercial advertising and promotion has been

disseminated to their customers and potential customers, many if not

all of whom are also customers or potential customers of Cottrell. 

Such customers have been actually deceived by the advertising and

promotional materials published by and continuing to be published by

Biotrol and Pro-Dex. Said claims and misrepresentations further

deceive existing and potential customers of the parties by implying

that EPA approval or clearance has been obtained therefor.

17. Customers for hard surface disinfectants are attracted by

“label claims” which provide for “mixing and using” over longer

periods of time. By making false label claims, inter alia, that Birex

can [be] used for seven days after mixing, Biotrol and Pro-Dex place

Cottrell at a gross, substantial and continuing competitive

disadvantage. Because false and incorrect label claims make their

products appear to be more attractive to customers and ultimately end

users of these products, the Defendants misrepresentations are likely

to influence the purchasing decisions of the persons and entities to

whom disseminated.
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The defendants-appellees argue that “FIFRA is the exclusive federal law

that regulates the labeling of pesticides,” that “Birex is regulated as a pesticide

under [FIFRA],” and that Cottrell’s allegations relate only to Birex’s label claims. 

Thus, they argue that Cottrell is attempting to do indirectly what Congress has not

given it the right to do directly — i.e., enforce the requirements of FIFRA (which

only the EPA can do) by way of the Lanham Act. Moreover, the defendantsappellees argue that resolution of Cottrell’s claims would require a determination

of whether the label claims violate EPA clearance — a determination requiring

EPA expertise, which only the EPA is qualified to make. Accordingly, the

defendants-appellees claim that Cottrell has failed to state a claim on which relief

can be granted in the courts.

Cottrell argues that it is not attempting to enforce FIFRA, but rather to

vindicate its rights under the Lanham Act independent of FIFRA. We agree. 

Construing Cottrell’s complaint in the light most favorable to Cottrell, we

recognize at least three allegations of false or misleading statements made by

defendants-appellees which, for purposes of this opinion, we characterize as

claims #1, #2 and #3: #1, that representations made in Birex’s advertisements

violate the EPA clearance obtained under FIFRA by claiming that Birex continues

to be an effective cleaner and disinfectant for seven days; #2, that Birex’s

advertising deceives customers “by implying that EPA approval or clearance has
6Claims #1 and #2 are closely related but distinct. As we discuss further

below, claim (1) is an allegation that Birex’s label claims violate FIFRA, related

regulations, and EPA actions taken pursuant to FIFRA. As such, claim #1 is an

impermissible attempt under the Lanham Act to enforce FIFRA’s substantive

provisions. Claim #2, on the other hand, focuses on Birex’s representations

directed at consumers, and asserts that Birex’s label claims put in commerce a

false representation of EPA approval (which Cottrell argues had not been given).

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been obtained [for the seven-day efficacy claim]”;6 and #3, that Birex’s claim that

it “can be used seven days after mixing” is factually false.

In resolving defendants-appellees motion to dismiss, the district court

focused on paragraph 15 of Cottrell’s complaint, which contained only allegations

of the first category of falsity that we have identified (claim #1 in the preceding

paragraph). Based on allegations contained therein, the district court “agree[d]

with the Recommendation [of the magistrate judge] that this complaint seeks a

determination whether the label claims violate the EPA clearance. Resolution of

the Plaintiff’s complaint would require the court to interpret and apply regulations

that are exclusively within the province of the EPA.” According to the district

court, this was contrary to the teaching of Mylan Labs., Inc. v. Matkari, 7 F.3d

1130, 1139 (4th Cir. 1993); Sandoz Pharms., 902 F.2d at 231; Summit Tech., Inc.

v. High-Line Med. Instruments, Co., 933 F. Supp. 918, 933 n.7 (C.D. Cal. 1996);

Grove Fresh Distribs., Inc. v. Flavor Fresh Foods, Inc., 720 F. Supp. 714, 715-16

(N.D. Ill. 1989). We agree with the district court that claim #1 is subject to

12(b)(6) dismissal. However, in our view the district court failed to recognize the
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second and third categories of alleged falsity we have identified (claims #2 and #3

in the preceding paragraph). We reverse the district court’s dismissal of

Cottrell’s case because we find that Cottrell alleged sufficient facts regarding

claims #2 and #3 to state a claim under the Lanham Act.

We find instructive an unpublished memorandum and order from the United

States District Court for the District of Kansas which addressed similar issues in a

case involving the interaction between the Lanham Act and the federal Food,

Drug, and Cosmetic Act (“FDCA”). See Braintree Labs., Inc. v. Nephro-Tech,

Inc., No. 96-2459-JWL, 1997 WL 94237 (D. Kan. Feb. 26, 1997). There, the

plaintiff contended that “the ‘dietary supplement’ designation on defendants’

product [which had not obtained approval for marketing as a drug by the federal

Food and Drug Administration (“FDA”)] constitute[d] a false or misleading

description in violation of section 43(a) of the Lanham Act. Defendants argue[d]

that this claim may not stand because it merely alleges a violation of FDCA, for

which no private right of action exists.” Id. at *2 (citation and footnote omitted). 

After discussing Sandoz Pharms., Mylan Labs., Grove Fresh Distribs., and

Summit Tech, the court observed that “[a] general framework may be gleaned

from these cases.” Id. at *6. The court noted that:

Affirmative misrepresentations . . . are generally actionable under the

Lanham Act, even if the product is regulated by the FDA. Most

obviously, a false statement of FDA approval is actionable. It is also

clear that, because no private right of action exists under the FDCA,
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a plaintiff may not use the Lanham Act as an alternative vehicle by

which to seek redress for an FDCA violation. Moreover, claims that

require direct interpretation and application of the FDCA are not

properly recognized because such matters are more appropriately

addressed by the FDA, especially in light of Congress’s intention to

repose in that body the task of enforcing the FDCA. The court

believes that the Tenth Circuit would embrace these general

principles.

Id. Ultimately, in Braintree Labs., the court concluded that the issue of whether

the defendants’ product’s claim to be a “dietary supplement” was false or

misleading involved interpretation and application of the FDA definition of

“dietary supplement”; thus the court granted defendants’ motion to dismiss

plaintiff’s Lanham Act claim. See id. at *7.

The framework announced in Braintree Labs. serves us well in this case. 

As to Cottrell’s claim that we have denominated #1, we agree with the district

court that it must be dismissed. First, no party challenges the district court’s

conclusion that “FIFRA is exclusively enforced by the [EPA],” and thus we

accept this proposition for the purposes of this appeal. See Almond Hill Sch. v.

United States Dep’t of Agriculture, 768 F.2d 1030, 1035-38 (9th Cir. 1985)

(stating that “FIFRA does not authorize explicitly or implicitly a private cause of

action to enforce the Act.”); Fiedler v. Clark, 714 F.2d 77, 79 (9th Cir. 1983)

(noting that FIFRA contains no explicit provision for private enforcement and

“legislative history confirms that Congress did not intend to create a private cause

of action under FIFRA,” specifically citing Congress’ rejection of a proposed
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provision permitting private enforcement suits). Thus, this case is like Braintree

Labs. because the EPA stands in a similar enforcement relationship to FIFRA as

the FDA does to the FDCA. Second, we believe that Cottrell’s claim #1 is

properly characterized as an attempt to enforce FIFRA’s labeling requirements. 

The “EPA clearance” that Cottrell claims Birex’s advertisement violates was

obtained pursuant to (and only because of) FIFRA. See Lowe v. Sporicidin Int’l.,

47 F.3d 124, 130 (4th Cir. 1995) (“[I]t is clear that there is a ‘FIFRA-created

duty’ to file ‘a statement of all [label] claims’ made for a pesticide with the EPA,

§ 136(c)(1)(C), and not to make ‘any claims for it as a part of its distribution or

sale’ that ‘substantially differ from any claims made for it as a part of th[at]

statement.’ § 136j(a)(1)(B).” (first two alterations ours, others in original)). 

Independent of FIFRA, an allegation that Birex’s claims of seven-day efficacy

violates EPA clearance has no force because independent of FIFRA no EPA

clearance or approval for label claims would be necessary. Moreover, we believe

that a determination of the scope of EPA clearance, and whether Birex’s

advertisement violates that clearance, would require EPA expertise. Finally, and

most simply, even reading all inferences in Cottrell’s favor, claim #1 fails to

allege any false advertising. Accordingly, we agree with the district court that

Cottrell must not be permitted to bring a FIFRA claim dressed up as a Lanham
7We note that an allegation of a mere implication of EPA approval

approaches the type of abstract and unspecific allegation that courts correctly

consider to be insufficient to survive 12(b)(6) dismissal. Thus, unless Cottrell

demonstrates how defendants-appellees “imply” EPA approval, this claim still

might be ripe for dismissal prior to trial.

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Act claim, and claim #1 must be dismissed. Cf. Mylan Labs., 7 F.3d at 1139;

Sandoz Pharms., 902 F.2d at 231.

As to claims #2 and #3, however, we believe Cottrell has alleged sufficient

facts to support a Lanham Act claim independent of FIFRA. As identified above,

claim #2 alleges that Birex’s advertising deceives customers “by implying that

EPA approval or clearance has been obtained [for the seven-day efficacy claim].”7

As noted above, this claim is distinct from claim #1 because in addition to

alleging that the label claims did not comport with FIFRA regulations and EPA

approval, claim #2 adds an allegation that Birex’s label claim, in the context in

which the product is advertised, deceives consumers into believing, erroneously,

that the EPA has approved Birex’s one-week efficacy claim. As Braintree Labs.

stated: “Most obviously, a false statement of [EPA] approval is actionable.” 

Braintree Labs, 1997 WL 94237, at *6; see also Mylan Labs., 7 F.3d at 1138-39

(in general an allegation of false label claim of FDA approval is sufficient to

survive dismissal under Rule 12(b)(6), but there it was insufficiently alleged “that

defendants[ explicitly] falsely represented that their drugs had been ‘properly

approved by the FDA’” and “that fatal deficiency cannot be cured by contentions
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that the very act of placing a drug on the market, with standard package inserts

often used for FDA-approved drugs, somehow implies (falsely) that the drug had

been ‘properly approved by the FDA.’”). If Cottrell can establish by consumer

surveys or other means that Birex’s advertising is likely to confuse or actually

confuses consumers, then the effect of the false “implication” of EPA approval

that Cottrell now asserts could be as damaging for Lanham Act purposes as an

express false claim of EPA approval. Thus, in the posture this case now stands,

Cottrell has sufficiently alleged a material misrepresentation under the Lanham

Act.

Defendants-appellees, however, would have us dismiss this case because

Cottrell’s Lanham Act claim touches on issues covered by FIFRA. That is,

because FIFRA prohibits the sale and distribution of products with unapproved or

materially altered labels, defendants-appellees claim that FIFRA should preclude

an independent Lanham Act claim. But, because FIFRA nowhere explicitly

precludes Lanham Act coverage, we refuse to limit the scope of the Lanham Act

absent circumstances that inherently require interpretation of FIFRA regulations

and/or EPA approvals. Cf. Marriott Corp. v. Great America Serv. Trades

Council, 552 F.2d 176, 180-81 (7th Cir. 1977) (refusing to dismiss Lanham Act

claim involving “labor dispute,” and rejecting argument that Labor Management

Relations Act gives exclusive jurisdiction to the National Labor Relations Board
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because “[t]he fact that conduct is involved which may tangentially be covered by

section 7 or 8 of the Labor Management Relations Act is not sufficient to preempt jurisdiction over Marriott’s [Lanham Act] trademark action”); see also

McKenney & Long, supra, § 2.02, at 2-7 to 2-10 & nn. 10-19.2 (citing conflicting

cases). While there might be cases which would require EPA expertise to

determine whether claims made for a product were approved by the EPA, that fact

is not evident from the complaint before us in this case, and at this early stage of

pleadings we will not construe Cottrell’s claim #2 to involve such an allegation. 

Claim #2 can be construed to contend simply that the defendants-appellees falsely

imply that the EPA has approved their claim that Birex is effective for seven days

after mixing when in fact the EPA has not given such approval. We believe

courts are capable of resolving such issues. Cf. Grove Fresh Distribs., 720 F.

Supp. at 715-16 (despite fact that FDA regulation provides definition of “orange

juice from concentrate,” court was capable of resolving plaintiff’s Lanham Act

claim that defendants falsely claimed their product was “100% orange juice from

Concentrate” without reference to agency definition or expertise). Accordingly,

as to claim #2, Cottrell has stated a claim under the Lanham Act on which relief

can be granted and the Rule 12(b)(6) dismissal must be reversed.

Likewise, Cottrell’s claim #3 — that defendants-appellees falsely represent

that Birex “can be used seven days after mixing” — alleges sufficient facts to
8Because we reverse the district court’s dismissal of Cottrell’s original

complaint, we offer no opinion as to whether the district court erred in denying

Cottrell’s motion for leave to file an amended complaint.

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state a claim under the Lanham Act and is not the proper subject for Rule 12(b)(6)

dismissal. Admittedly, Cottrell’s assertion that “[b]y making false label claims,

inter alia, that Birex can [be] used for seven days after mixing,” is not the most

clear and direct way Cottrell could have alleged falsity. However, construing this

claim in the light most favorable to Cottrell, we must conclude that it sufficiently

alleges that the defendants-appellees falsely represent the efficacy of Birex. This

type of claim — alleging that Birex’s label claims misrepresent facts concerning

the quality of the product — is at the core of what the Lanham Act “false

advertising” prohibition makes actionable. And again, although there may be

circumstances under which EPA expertise would be necessary to determine the

efficacy and longevity of Birex, from the naked pleadings alone we cannot say for

certain that this is such a case. Accordingly, we reverse the Rule 12(b)(6)

dismissal as to claim #3.

CONCLUSION

We REVERSE the district court’s dismissal of Cottrell’s complaint

pursuant to Rule 12(b)(6), and REMAND this case for further proceedings.8