Truth in Advertising: Applying Commercial Speech Regulations to the Secondary Dissemination of Scientific Research Publications

(Excerpt) Part I of this Article examines the Lanham Act generally and the Act’s regulation of commercial speech. Part II reviews the interplay between the Lanham Act and the First Amendment protections afforded to scientific inquiry and scientific publication. It then examines the secondary dissemination of scientific findings, arguing that a third party’s dissemination of the scientific findings or a press release quoting those findings constitutes commercial speech that should be regulated by the Lanham Act. This Article explores how the recent ONY decision has the potential to chill Lanham Act litigation, and it argues that future decisions following ONY’s logic could foreclose Lanham Act litigation where the truth of scientific findings may be at issue.

Lastly, this Article contends that future Lanham Act decisions should instead follow the logic of the Fifth Circuit’s Eastman decision, which properly keeps the secondary dissemination of scientific publications under the ambit of the Lanham Act.