And Should I Then Presume?: A Response to Carrier and Tushnet’s An Antitrust Framework for False Advertising

Abstract

Michael Carrier and Rebecca Tushnet’s article An Antitrust Framework for False Advertising, 106 Iowa L. Rev. 1841 (2021), makes a convincing case that a “categorical immunity” approach, under which false advertising can never serve as the basis for a monopolization or attempted monopolization claim under § 2 of the Sherman Act, is unwarranted; and that an alternative approach, under which courts apply a rebuttable presumption that false advertising is insufficiently exclusionary to contribute to the willful acquisition or maintenance of monopoly power, is similarly unsound. Carrier and Tushnet’s further argument, that rather than simply applying a case-by-case approach courts should adopt a rebuttable presumption of antitrust liability whenever a monopolist engages in false advertising, is sometimes less convincing, though I suspect that in practice such a presumption would only rarely be outcome-determinative.

Keywords: antitrust, false advertising, monopolization