IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-51087

EASTMAN CHEMICAL COMPANY, 

 Plaintiff – Appellee,

v.

PLASTIPURE, INCORPORATED; CERTICHEM, INCORPORATED, 

 Defendants – Appellants.

Appeal from the United States District Court

for the Western District of Texas

Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

After a jury found that PlastiPure, Inc. and CertiChem, Inc. violated the 

Lanham Act by making false statements of fact about their competitor’s 

product, the district court entered an injunction against both companies. On 

appeal, PlastiPure and CertiChem challenge the jury verdict and the 

injunction on various grounds, including that their statements constituted 

non-actionable scientific opinions rather than actionable statements of fact. 

Because the Lanham Act prohibits false commercial speech even when that 

speech makes scientific claims, and because Appellants’ other contentions lack 

merit, we AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

December 22, 2014

Lyle W. Cayce

Clerk

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I.

Eastman Chemical Company (Eastman) manufactures a plastic resin 

called Tritan and sells it to manufacturers of water bottles, baby bottles, food 

containers, and other consumer products. Eastman launched Tritan 

commercially in 2007 as an alternative to polycarbonate, which at that point 

was the primary plastic used in food contact applications. Shortly after 

Tritan’s launch, consumers became concerned that an ingredient in 

polycarbonate, bisphenol A (BPA), could be harmful to humans. The concerns 

about BPA were premised on scientific studies purporting to show that BPA 

could activate estrogen receptors in the human body. Chemicals that mimic 

estrogen are said to possess estrogenic activity (EA), and they can trigger 

hormone-dependent cancers, reproductive abnormalities, and other negative 

health conditions. Eastman recognized that consumer fears about 

polycarbonate could be a boon to its sales of Tritan, provided that it could 

assure potential clients that Tritan does not exhibit EA. To that end, Eastman 

conducted a battery of tests on Tritan which, according to Eastman, showed 

that Tritan does not exhibit EA. 

PlastiPure and CertiChem also hoped to seize on the opportunity created 

by the public’s desire for BPA-free plastics. PlastiPure and CertiChem are 

companies founded by Dr. George Bittner, a professor of neurobiology at the 

University of Texas at Austin. PlastiPure developed a plastic resin that it 

claims does not exhibit EA and, like Eastman, PlastiPure sells its plastic resin 

to product manufacturers. CertiChem’s primary focus is on testing materials 

for various sorts of hormonal activity.

In 2011, CertiChem published an article summarizing the results of its 

testing of more than 500 commercially available plastic products. The article 

was published in Environmental Health Perspectives, a peer-reviewed journal 

published by the National Institutes of Health. Although products made with 

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Tritan were among the products tested, Tritan was not mentioned by name in 

the article. 

After research on the article was completed, but prior to the article’s 

publication, PlastiPure published a three-page sales brochure entitled “EAFree Plastic Products: Beyond BPA-Free” and distributed the brochure at trade 

shows and directly to potential customers. The brochure contains a chart that 

depicts products containing “Eastman’s Tritan” as having significant levels of 

EA. The caption to the chart states: “Examples of test results of products 

claiming to be EA-free or made from materials claiming to be EA-free are given 

in the figure to the right. Most examples are made from Eastman’s TritanTM 

resin.”

Based on the sales brochure and other marketing materials, Eastman 

filed suit against PlastiPure and CertiChem, alleging false advertising under 

the Lanham Act, business disparagement, tortious interference, unfair 

competition, and conspiracy. At trial, both sides offered expert testimony 

about the proper definition of EA, the proper way to test for EA, and whether 

Tritan exhibits EA. After a jury verdict in favor of Eastman, the district court 

entered judgment against PlastiPure and CertiChem, ruling that both 

companies willfully violated Section 43(a) of the Lanham Act, 15 U.S.C. 

§ 1125(a), engaged in unfair competition under Texas common law, and 

conspired with one another in connection with these violations. The district 

court, after denying their motion for judgment as a matter of law, enjoined 

PlastiPure and CertiChem from distributing the above-referenced sales 

brochure and from:

making any verbal or written statement, expressly or by 

implication, to any third party in connection with any advertising, 

promotion, offering for sale, or sale of goods or services or in any

other commercial manner that:

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(1) Tritan resins and products leach chemicals having 

significant estrogenic activity; (2) Tritan, or products 

made with Tritan, are dangerous to human health 

because they exhibit estrogenic activity; or (3) Tritan 

resins and products leach chemicals having significant 

estrogenic activity after common-use stresses.

PlastiPure and CertiChem make three arguments on appeal. First, they 

argue that the district court’s injunction is improper because their statements 

were scientific opinions rather than actionable facts. Second, they argue that 

the jury verdict is based on legally insufficient evidence. Third, they argue 

that the district court’s jury instructions and verdict form contain errors 

warranting reversal. 

II.

Appellants contend that the district court should not have entered its 

injunction because Appellants’ statements about Tritan are not actionable 

statements of fact under the Lanham Act. We review the grant of a permanent 

injunction for abuse of discretion. Abraham v. Alpha Chi Omega, 708 F.3d 614, 

620 (5th Cir. 2013). An abuse of discretion may be found where the trial court 

“(1) relies on clearly erroneous factual findings when deciding to grant or deny 

the permanent injunction, (2) relies on erroneous conclusions of law when 

deciding to grant or deny the permanent injunction, or (3) misapplies the 

factual or legal conclusions when fashioning its injunctive relief.” Schlotzsky’s, 

Ltd. v. Sterling Purchasing & Nat’l Distribution Co., 520 F.3d 393, 402 (5th 

Cir. 2008) (internal quotation marks omitted).

Section 43(a) of the Lanham Act prohibits false advertising. 15 U.S.C. 

§ 1125(a). It provides a civil cause of action against any person who, in 

connection with goods or services, uses any “false or misleading description of 

fact, or false or misleading representation of fact . . . .” Id. § 1125(a)(1). 

“Essential to any claim under section 43(a) of the Lanham Act is a 

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determination of whether the challenged statement is one of fact—actionable 

under section 43(a)—or one of general opinion—not actionable under section 

43(a).” Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 495–96 (5th Cir. 

2000). 

We have held that “[a] statement of fact is one that (1) admits of being 

adjudged true or false in a way that (2) admits of empirical verification.” 

Presidio Enters., Inc. v. Warner Bros. Distrib. Corp., 784 F.2d 674, 679 (5th Cir. 

1986). Similarly, we have said that the challenged statement must make a 

“‘specific and measurable claim, capable of being proved false or of being 

reasonably interpreted as a statement of objective fact.’” Pizza Hut, 227 F.3d 

at 496 (quoting Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 

725, 731 (9th Cir. 1999)); see also Southland Sod Farms v. Stover Seed Co., 108 

F.3d 1134, 1145 (9th Cir. 1997) (stating that a statement of fact is one that 

makes “a specific and measurable advertisement claim of product superiority”). 

In contrast, “[b]ald assertions of superiority” and “exaggerated, blustering, and 

boasting statement[s]” are non-actionable opinions. Pizza Hut, 227 F.3d at 

496–97. Predictions of future events are also non-actionable expressions of 

opinion. Presidio Enters., 784 F.2d at 680.

Appellants argue that commercial statements relating to live scientific 

controversies should be treated as opinions for Lanham Act purposes. 

According to Appellants, enjoining statements that embrace one side of an open 

scientific debate would stifle academic freedom and inhibit the free flow of 

scientific ideas, contrary to the principles undergirding the First Amendment. 

Accordingly, they urge us to classify their statements about Tritan’s EA 

content as opinions rather than actionable facts.

As primary support for their argument, Appellants offer the Second 

Circuit’s opinion in ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490 

(2d Cir. 2013). In ONY, the parties were rival producers of non-human 

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surfactants, which are biological substances used to treat respiratory 

conditions in infants. The defendants conducted a study of the relative efficacy

of different surfactants, concluding that their own surfactant was associated 

with a lower mortality rate and a shorter length of hospital stay than the 

plaintiff’s surfactant. The defendants hired several physicians to present the 

study’s findings at pediatric society meetings, and those physicians published 

the study’s findings in an article in a peer-reviewed journal. After the article’s 

publication, the defendants “issued a press release touting its conclusions and 

distributed promotional materials that cited the article’s findings.” Id. at 495. 

The plaintiff in ONY filed a complaint alleging, inter alia, tortious 

interference and violations of the Lanham Act. According to the ONY plaintiff, 

the published article contained “five distinct incorrect statements of fact about 

the relative effectiveness” of the companies’ surfactants. Id. at 494. The 

district court dismissed the complaint and the Second Circuit affirmed. The 

Second Circuit began its analysis by noting that “[s]cientific academic 

discourse poses several problems for the fact-opinion paradigm of First 

Amendment jurisprudence.” Id. at 496. Although scientific articles typically 

make specific and measurable claims that can be reasonably interpreted as 

statements of objective fact, “it is the essence of the scientific method that the 

conclusions of empirical research are tentative and subject to revision, because 

they represent inferences about the nature of reality based on the results of 

experimentation and observation.” Id. After a thorough analysis, the Second 

Circuit concluded that the First Amendment places scientific debates 

unfolding within the scientific community beyond the reach of the Lanham Act. 

According to the Second Circuit, statements in scientific literature “are more 

closely akin to matters of opinion, and are so understood by the relevant 

scientific communities.” Id. at 497.

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Appellants insist that the present case is on “all fours” with ONY. We 

disagree. The plaintiff in ONY sought to enjoin statements made within the 

academic literature and directed at the scientific community. In that context, 

the Second Circuit concluded that the defendants’ statements should be 

treated as opinions, else the prospect of defamation liability would stifle 

academic debate and trench upon First Amendment values. See id. at 497 

(“[T]he trial of ideas plays out in the pages of peer-reviewed journals, and the 

scientific public sits as the jury.”). Here, in contrast, Eastman did not sue 

Appellants for publishing an article in a scientific journal. Rather, Eastman 

sought to enjoin statements made in commercial advertisements and directed 

at customers. As the district court aptly summarized:

This lawsuit is not about Dr. Bittner’s scientific paper. It is 

about statements made in commercial advertisements or 

promotions, not statements made in a peer-reviewed journal. It is 

about statements made to consumers, not scientists. It is about 

statements made without the necessary context presented by a full 

scientific study, such as a description of the data, the experimental 

methodology, the potential conflicts of interest, and the differences 

between raw data and the conclusions drawn by the researcher.

Eastman Chem. Co. v. PlastiPure, Inc., 969 F. Supp. 2d 756, 764 (W.D. Tex. 

2013). In this commercial context, the First Amendment is no obstacle to 

enforcement of the Lanham Act. See Zauderer v. Office of Disciplinary Counsel 

of Supreme Court of Ohio, 471 U.S. 626, 638 (1985) (“The States and the 

Federal Government are free to prevent the dissemination of commercial 

speech that is false, deceptive, or misleading . . . .”); see also Cent. Hudson Gas 

& Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 562–63 (1980) 

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(“The Constitution therefore accords a lesser protection to commercial speech 

than to other constitutionally guaranteed expression.”).1 

Given the applicable binding precedent, it is of no moment that the 

commercial speech in this case concerned a topic of scientific debate. 

Advertisements do not become immune from Lanham Act scrutiny simply 

because their claims are open to scientific or public debate. Otherwise, the 

Lanham Act would hardly ever be enforceable—“many, if not most, products 

may be tied to public concerns with the environment, energy, economic policy, 

or individual health and safety.” Cent. Hudson, 447 U.S. at 563 n.5. The 

Supreme Court has “made clear that advertising which links a product to a 

current public debate is not thereby entitled to the constitutional protection 

afforded noncommercial speech.” Bolger v. Youngs Drug Products Corp., 463 

U.S. 60, 68 (1983) (internal quotation marks omitted); see also Recent Case, 

127 Harv. L. Rev. 1815, 1819 (2014) (“Dissemination of a scientific article as 

part of a company’s marketing campaign is for promotional purposes and 

therefore qualifies as commercial speech.”). The First Amendment ensures a 

robust discourse in the pages of academic journals, but it does not immunize 

false or misleading commercial claims. See, e.g., Church & Dwight Co. v. 

Clorox Co., 840 F. Supp. 2d 717, 722–23 (S.D.N.Y. 2012) (enjoining commercial 

1 Jurists and commentators have urged the Supreme Court to abandon the distinction 

between commercial and non-commercial speech. See, e.g., 44 Liquormart, Inc. v. Rhode 

Island, 517 U.S. 484, 518–28 (1996) (Thomas, J., concurring in part and concurring in 

judgment); Alex Kozinski & Stuart Banner, Who’s Afraid of Commercial Speech?, 76 Va. L.

Rev. 627 (1990); see also Martin H. Redish, Product Health Claims and the First Amendment: 

Scientific Expression and the Twilight Zone of Commercial Speech, 43 Vand. L. Rev. 1433 

(1990) (acknowledging that “the Court has allowed certain forms of regulation for commercial 

speech that clearly would be impermissible for more traditional subjects of expression,” but 

arguing that commercial-scientific speech should be “viewed not as commercial, but rather 

as fully protected scientific expression. To hold otherwise would be to penalize traditionally 

protected expression for no reason other than the communicator’s personal motivation for 

making that expression. Motivation never has influenced the level of protection given to 

speech in other contexts and its use cannot be rationalized under first amendment theory.”).

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claims as literally false because tests supporting those claims were unreliable); 

Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 944 (3d Cir. 1993) (enjoining claims 

that Pennzoil motor oil outperformed Castrol motor oil with respect to viscosity 

breakdown); McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co., 938 F.2d 1544, 

1549 (2d Cir. 1991) (enjoining claims that Excedrin was scientifically superior 

to Tylenol at relieving pain).

Appellants make much of the fact that the Second Circuit in ONY also 

dismissed a tortious interference claim regarding the defendants’ “touting and 

distributing the article’s findings for promotional purposes.” Id. at 498–99. 

Even if it were binding on us, that portion of the Second Circuit’s holding would

not affect the analysis here, for two reasons. First, the Second Circuit

addressed secondary distribution of the article in the context of a state law 

tortious interference claim—not in the context of the Lanham Act. The Second 

Circuit did not hold that promotional materials embracing one side of a 

scientific debate are opinions under the Lanham Act; rather, it held that the 

act of distributing those statements did not give rise to liability for tortious 

interference. Second, the nature of the secondary distribution in ONY is 

dissimilar to that which occurred in this case. In ONY, the secondary 

distribution was limited to the issuance of a press release summarizing the 

article’s findings and dissemination of the article itself. Here, the secondary 

distribution did not include any dissemination of the article; in fact, the sales 

brochure was distributed prior to the article’s publication. Nor did the sales 

brochure simply tout the article’s findings—the sales brochure specifically 

highlights the alleged EA content of Tritan, but the article never even 

mentions Tritan by name. As the district court recognized, the different results 

in ONY and in this case reflect the difference between presenting an article’s 

conclusions and “transform[ing] snippets of . . . a paper which never mentions 

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Tritan or Eastman by name . . . into commercial advertisements claiming 

Tritan is harmful.” Eastman Chem. Co., 969 F. Supp. 2d at 764.

Application of the Lanham Act to Appellants’ promotional statements 

will not stifle academic freedom or intrude on First Amendment values. By its 

terms, the injunction only applies to statements made “in connection with any 

advertising, promotion, offering for sale, or sale of goods or services.” 

Appellants may continue to pursue their research and publish their results; 

they simply may not push their product by making the claims the jury found 

to be false and misleading.2

III.

Appellants argue that the jury’s verdict must be reversed because “there 

is no legally sufficient evidence demonstrating that Tritan does not have EA.” 

According to Appellants, the jury had no basis on which to conclude that 

Appellants’ statements about Tritan’s EA were false. In response, Eastman 

contends that “substantial trial evidence” showed that Tritan is free of EA, and 

that “the jury reasonably concluded that Defendants’ statements to the 

contrary were affirmatively false.” Eastman also points out that Appellants 

2 The district court’s injunction permits Appellants to “seek relief from the injunction” 

if new research proves “the statements the jury found to be false and misleading are no longer 

false and misleading . . . .” According to Appellants, the nature of the district court’s 

injunction reveals that Appellants’ statements are not statements of objective fact: “a 

statement of historical fact (e.g., ‘Tritan has EA’) cannot be false on one day, and true on the 

next.” The fact that Appellants might be able someday to prove that their statements are 

true does not make the injunction improper. If it did, companies could make all sorts of 

unsupported claims and then avoid liability by arguing that they might be able to prove the 

truth of the claims at some point in the future. Instead, when a jury finds statements to be 

false, an injunction properly issues and then can be modified or dissolved if factual 

circumstances change. See ICEE Distribs., Inc. v. J&J Snack Foods Corp., 445 F.3d 841, 850 

(5th Cir. 2006) (“Modification of an injunction is appropriate when the legal or factual 

circumstances justifying the injunction have changed.”); see also Basic Research, L.L.C. v. 

Cytodyne Technologies, Inc., No. 2:99-CV-343K, 2000 WL 33363261, at *11 (D. Utah Dec. 20, 

2000) (vacating injunction in Lanham Act case after defendants conducted additional tests 

that supported defendants’ scientific claims).

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fail to challenge the jury’s finding that the statements were misleading, which 

serves as an independent basis of liability under the Lanham Act.

“[O]ur standard of review with respect to a jury verdict is especially 

deferential.” SMI Owen Steel Co., Inc. v. Marsh U.S.A., Inc., 520 F.3d 432, 437 

(5th Cir. 2008) (internal quotation marks omitted). “Although we review the 

denial of a motion for judgment as a matter of law de novo, we apply the same 

legal standard as the district court.” E.E.O.C. v. Boh Bros. Constr. Co., 731 

F.3d 444, 451 (5th Cir. 2013) (en banc). “Under that standard, a litigant cannot 

obtain judgment as a matter of law ‘unless the facts and inferences point so 

strongly and overwhelmingly in the movant’s favor that reasonable jurors 

could not reach a contrary conclusion.’” Id. (quoting Baisden v. I’m Ready 

Prods., Inc., 693 F.3d 491, 498 (5th Cir. 2012), cert. denied, ––– U.S. –––, 133 

S. Ct. 1585 (2013)). In conducting our review, we must draw all reasonable 

inferences in the light most favorable to the verdict and cannot substitute other 

inferences that we might regard as more reasonable. Westlake Petrochems., 

L.L.C. v. United Polychem, Inc., 688 F.3d 232, 239 (5th Cir. 2012). For “‘it is 

the function of the jury as the traditional finder of the facts, and not for the 

Court, to weigh conflicting evidence and inferences, and determine the 

credibility of witnesses.’” Roman v. W. Mfg., Inc., 691 F.3d 686, 692 (5th Cir.

2012) (quoting Mosley v. Excel Corp., 109 F.3d 1006, 1009 (5th Cir. 1997)).

A reasonable jury could have concluded that Appellants’ statements 

were false. Eastman introduced evidence of tests conducted by four separate

laboratories that found no evidence of estrogenic activity in Tritan. Eastman’s 

expert witnesses testified that Tritan was non-harmful and was EA-free. 

Eastman’s experts also testified that most of Appellants’ tests were not 

scientifically reliable, and that the few reliable tests actually showed no 

evidence of EA. No expert on either side ever testified that Tritan is harmful 

to humans. Of course, Appellants offered their own evidence. Dr. Bittner

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testified extensively about his expertise and about the reliability of Appellants’ 

testing methods. Multiple expert witnesses testified that Appellants’ tests 

were scientifically reliable and could accurately detect the presence of EA. 

After hearing this evidence, the jury was free to, and apparently did, credit 

Eastman’s evidence that Tritan was EA-free over the contrary evidence 

presented by Appellants.3 See Boh Bros. Constr. Co., 731 F.3d at 452 (“‘We are 

not to tamper lightly with the considered judgment of those drawn together at 

one point in time to render a judgment that is representative of the good 

common sense of the American people.’” (quoting Stacey v. Allied Stores Corp., 

768 F.2d 402, 406 (D.C. Cir. 1985)); see also Eastman Chem. Co., 969 F. Supp. 

2d at 761 (noting “the capability of juries to understand scientific evidence and 

weigh the credibility of the competing experts, notwithstanding their 

contradictory conclusions and dogmatic assertions” (internal quotation marks 

omitted)).

In any event, the jury also found that Appellants’ statements were 

misleading, and Appellants do not challenge the sufficiency of the evidence on 

that point. The jury’s finding that the statements were misleading serves as 

an independent basis for the district court’s injunction. See 15 U.S.C. 

§ 1125(a)(1) (imposing liability for any “false or misleading description of fact, 

or false or misleading representation of fact” (emphases added)). The district 

court properly instructed the jury that it could find the challenged statements 

“misleading” even if they were not literally false, and that liability for 

misleading statements would only attach with additional findings of 

“deception” and “materiality.” Sure enough, the jury found that the statements 

3 The parties debate whether our circuit should adopt the “tests-prove” standard of 

liability, see Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1309 (11th Cir. 2010), and whether 

the district court should have submitted a “tests-prove” instruction to the jury. We need not 

address this question because the jury, by finding that Tritan does not have EA, necessarily

also found that Appellants’ tests did not prove that Tritan has EA.

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were misleading, that they “deceived, or had the capacity to deceive a 

substantial segment of potential customers,” and that the deception was “likely 

to influence the purchasing decisions of consumers.” Accordingly, Appellants

would be liable under the Lanham Act even if the evidence did not support a 

finding of actual falsity.

Appellants attempt to clear this hurdle by asserting: “a jury that has 

been wrongfully allowed, based on incorrect instructions, to determine that a 

statement is literally false cannot then be asked whether the same statement 

is misleading without the taint of the first answer destroying the reliability of 

the second.” Appellants offer no authority for this proposition, and we fail to 

grasp its logic. A jury’s view of whether a statement is misleading is not

“tainted” simply because the jury is also asked whether that statement is false. 

To be sure, a jury that finds a statement to be false likely will find the same 

statement to be misleading. But the jury’s conclusion would not result from 

any “taint”—it would result from the jury’s assessment of the evidence. The 

jury in this case heard the evidence and was asked whether the Appellants’ 

statements were false or misleading, and the jury answered both questions in 

the affirmative. The jury’s finding that the statements were misleading serves 

as an independent basis for the district court’s injunction, and we therefore 

find no reversible error on this point.

IV.

Appellants argue that the jury’s verdict cannot stand because of three 

purported errors in the jury instructions and verdict form. We review 

challenges to jury instructions for abuse of discretion and afford the trial court 

great latitude in the framing and structure of jury instructions. United States 

v. Carrillo, 660 F.3d 914, 925–26 (5th Cir. 2011). In order to demonstrate 

reversible error, the party challenging the instruction must show that the 

charge “creates substantial and ineradicable doubt whether the jury has been 

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properly guided in its deliberations.” Taita Chem. Co. v. Westlake Styrene, LP, 

351 F.3d 663, 667 (5th Cir. 2003) (internal quotation marks omitted). “The 

instructions need not be perfect in every respect provided that the charge in 

general correctly instructs the jury, and any injury resulting from the 

erroneous instruction is harmless.” Rogers v. Eagle Offshore Drilling Servs., 

Inc., 764 F.2d 300, 303 (5th Cir. 1985). We do not reverse on the grounds of an 

erroneous instruction if the error “could not have affected the outcome of the 

case.” F.D.I.C. v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994).

Appellants’ first argument is based on the district court’s jury 

instructions. The jury instructions advised the jury that it would be asked 

whether any of three statements were false or misleading. After listing the

three statements, the instructions advised that the first statement could be 

found in Exhibit P108 and that the second statement could be found in Exhibit 

P110. Both of those exhibits are press releases describing the litigation 

between Eastman and Appellants. Appellants claim that the district court 

erred by allowing the jury to base its findings of falsity on statements 

Appellants made in press releases, because statements made in press releases 

are not commercial speech. The district court rejected this argument when it 

ruled on Appellants’ Motion for Judgment, reasoning that the press 

releases were commercial speech because they “were clearly designed to bolster 

[Appellants’] image and reaffirm [Appellants’] primary business strategy; in 

other words, to ‘influenc[e] consumers to buy [Appellants’] goods or 

services . . . .’” Eastman Chem. Co., 969 F. Supp. 2d at 763 (quoting Seven-Up 

Co. v. Coca-Cola Co., 86 F.3d 1379, 1384 (5th Cir. 1996)). We need not 

determine whether the press releases were commercial speech because

Appellants failed to object during the charge conference to this aspect of the 

district court’s jury instructions. As a result, Appellants have waived this 

argument. Texas Beef Grp. v. Winfrey, 201 F.3d 680, 689 (5th Cir. 2000) (“If a 

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party fails to object with specificity to a proposed instruction, the right to 

challenge the instruction on appeal is waived.”); see Fed. R. Civ. P. 51.4

Appellants’ second argument concerns the district court’s instruction 

that “[a] false statement may be either literally false, or false by necessary 

implication.”5 Appellants contend that the Fifth Circuit has not adopted the 

“false by necessary implication” doctrine, and that it should not do so here. 

Under the “false by necessary implication” doctrine—which has been adopted 

by the First, Second, Third, Fourth, Ninth, and Federal Circuits—a statement 

may be false when, “considering the advertisement in its entirety, the audience 

would recognize the claim as readily as if it had been explicitly stated.” Clorox 

Co. Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24, 35 (1st Cir. 

2000). We need not decide whether to adopt the “false by necessary 

implication” doctrine because, as already discussed, the jury found all of 

Appellants’ statements to be both literally false and misleading. The jury’s 

finding that the statements were misleading serves as an independent basis 

for the district court’s injunction, regardless of whether the instruction about 

falsity was proper.

Appellants’ third argument relates to the second statement submitted to 

the jury. The district court, instead of enumerating actual statements 

Appellants made about Tritan, asked the jury whether “statements to the 

effect that Tritan, or products made with Tritan, are dangerous to human 

health because they exhibit estrogenic activity” would be false or misleading. 

4 If error is not preserved, we may review for plain error. Taita Chem. Co. v. Westlake 

Styrene, LP, 351 F.3d 663, 668 (5th Cir. 2003). Appellants have not argued, much less 

demonstrated, that the district court’s instruction constituted plain error.

5 Appellants objected in the district court to the false by necessary implication 

instruction “on the grounds that the doctrine of falsity by necessary implication has not been 

adopted by any court in the Fifth Circuit and nor should it.”

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In the district court, Appellants argued that the statement could not be 

“literally false” because Appellants never actually made the statement. 

Counsel for Appellants stated:

[The second statement] is not a statement that’s actually 

made. And so, we would argue that to the extent that it’s not 

actually made, it’s only properly something that can be misleading, 

because something that’s not actually made can’t be literally false.

The district court explained that it was using this amalgamated 

statement because the alternative was to enumerate eighteen separate 

statements, and the court asked counsel for Appellants if he preferred that 

alternative. Counsel for Appellants responded: “No. If that’s the alternative, 

then no.” The district court then opined that enumerating such a large number 

of statements would be prejudicial to the defendant and burdensome on the 

jury, and counsel for Appellants responded that he preferred the amalgamated 

statement. On appeal, Appellants argue that the amalgamated statement 

cannot form the basis of Lanham Act liability because Appellants never made 

that particular statement. 

As an initial matter, Appellants failed to preserve their argument. To 

preserve a jury instruction error, a party must make “a specific, formal, on-therecord objection . . . .” Jimenez v. Wood Cnty., Tex., 660 F.3d 841, 845 (5th Cir. 

2011) (en banc). Although Appellants expressed concern about the 

amalgamated statement, they quickly backtracked from their objection when 

presented with an alternative option. Appellants never proposed an 

alternative solution of their own. As a result, Appellants failed to make their 

position “sufficiently clear to the court to satisfy Rule 51’s objection 

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 Case: 13-51087 Document: 00512879044 Page: 16 Date Filed: 12/22/2014
No. 13-51087

requirement.” Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 361 (5th Cir. 

1995).

Even assuming arguendo that the objection was preserved, Appellants 

have not explained how the instruction affected the outcome of the case. 

Appellants argued in the district court that the amalgamated statement could 

not be literally false, but they conceded that the amalgamated statement could 

be misleading. Because the jury found the statement to be both false and 

misleading, Appellants were not harmed by any error. Moreover, Appellants 

do not deny that the amalgamated statement accurately summarizes 

statements Appellants made, and the injunction goes no further than to enjoin

statements matching the amalgamated statement. Accordingly, any error was 

harmless.

For the foregoing reasons, we AFFIRM.

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 Case: 13-51087 Document: 00512879044 Page: 17 Date Filed: 12/22/2014