An Antitrust Framework for False Advertising

44 Pages Posted: 27 May 2020 Last revised: 17 Jun 2021

Date Written: May 5, 2020

Abstract

Federal law presumes that false advertising harms competition. Federal law also presumes that false advertising is harmless or even helpful to competition. Contradiction is not unknown to the law, of course. This contradiction, though, is acute. For not only are both regimes at issue designed to protect competition, but they are both enforced by the same agency: the Federal Trade Commission, which targets “unfair competition” through antitrust and consumer protection enforcement.

Courts’ treatment of false advertising in antitrust cases makes no sense. While courts have reasonably evidenced concern that not all false advertising violates antitrust law, the remedy is not to abandon the false advertising/antitrust interface. Instead, the solution is to focus on the actors most likely to harm the market: monopolists and attempted monopolists.

This Essay proposes an antitrust framework for false advertising claims. It introduces a presumption that monopolists engaging in false advertising violate antitrust law and a rebuttal if the false advertising is ineffective. The framework also applies to attempted monopolization by incorporating factors such as falsity, materiality, and harm inherent in false advertising law, along with competition-centered issues like targeting new market entrants.

Antitrust has dismissed false advertising that entrenches monopoly power for too long. This Essay seeks to resolve the contradiction in the law by showing how false advertising threatens the proper functioning of markets. Such an approach promises benefits for false advertising law, antitrust law, and consumers.

Keywords: antitrust, false advertising, monopoly, biosimilars

JEL Classification: K21,L41,M37,O34

Suggested Citation

Carrier, Michael A. and Tushnet, Rebecca, An Antitrust Framework for False Advertising (May 5, 2020). Iowa Law Review, Forthcoming, Rutgers Law School Research Paper, Harvard Public Law Working Paper No. 20-16, Available at SSRN: https://ssrn.com/abstract=3593914

Michael A. Carrier (Contact Author)

Rutgers Law School ( email )

217 North Fifth Street
Camden, NJ 08102-1203
United States
856-225-6380 (Phone)
856-225-6516 (Fax)

Rebecca Tushnet

Harvard Law School ( email )

Cambridge, MA
United States

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