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# Differentiating Literally False and Impliedly False Ads
- URL: https://www.fdaweb.com/differentiating-literally-false-and-impliedly-false-ads/
- Published: 2016-09-27T12:00:00.000Z
- Updated: 2026-09-14T21:35:09.000Z
- Author: David McFarland
- Tags: FDA Policy/General, #legacy-id-D5136928

A recent 2nd Circuit Court of Appeals decision in a false advertising case explains the distinction between an advertisement that is literally false by implication and one that is impliedly false. Attorney **Sandra Edelman** (Dorsey & Whitney) writes in an online blog [post](http://www.lexology.com/library/detail.aspx?g=2536d47a-6efa-4ca2-8403-0f923bdd4e6f&ref=fdaweb.com) that the decision involved a suit brought by Church & Dwight against Swiss Precision Diagnostics over its Clearblue Advanced Pregnancy Test with Weeks Estimator.

Edelman says the product estimated how many weeks a pregnancy had advanced based on the date of last ovulation, which is not the standard metric commonly used by the medical profession to describe how long a woman has been pregnant (based on elapsed weeks since the woman’s last menstrual period.) Church & Dwight essentially claimed that the Clearblue packaging and advertising communicated the false message that the product used the same metric and gave information about the same number of weeks of pregnancy as would be provided by a medical professional.

The appeals court upheld a lower court determination that the launch packaging and advertising were both literally false by necessary implication as well as impliedly false. Edelman says the court explained that a statement can be deemed false by necessary implication even without an express statement of falsity if the ad’s words or images, considered in context, necessarily and unambiguously imply a false message. “The requirement that the statement be unambiguous is the key to understanding the category of literal falsity by necessary implication,” Edelman writes. “In other words, some interpretation of the advertisement is required, but there is only one unambiguous interpretation that can be made. And since there is only one unambiguous implied message, there is no need to show by market research survey evidence or evidence of an intent to deceive that the buying public was in fact misled by the advertisement. In contrast, an advertising representation may be found ‘impliedly false’ if the challenged statement is ambiguous and therefore susceptible to more than one reasonable interpretation. In that case, extrinsic evidence of consumer confusion or evidence of an intent to deceive would be required to establish liability.”