## Facts

- Proctor & Gamble companies (“P&G”) manufactured and sold numerous consumer products.
- Amway Corporation sold competing consumer products through a multi-level distributor network.
- An Amway distributor, Randy Haugen, posted a message on an Amway distributor messaging system asserting that P&G’s president was a satanic agent and that P&G’s profits supported a satanic church.
- The message identified many specific P&G products and urged recipients not to buy P&G products and to purchase Amway products instead.
- Although Haugen later retracted the message, it continued to circulate within the distributor network.
- P&G received consumer complaints and inquiries and alleged reputational harm, lost goodwill, and lost sales attributable to the message and similar communications.
- P&G sued multiple Amway-related defendants and Amway, asserting a Lanham Act § 43(a) false advertising/misrepresentation claim and Utah tort claims including defamation and product disparagement/injurious falsehood.
- The district court granted summary judgment for defendants on the Lanham Act claim (reasoning the message did not concern product “qualities or characteristics”) and dismissed or granted summary judgment against many state-law claims.

## Issues

1. Whether statements linking P&G to Satanism and alleging its profits funded a satanic church can constitute a misrepresentation of P&G’s “commercial activities” actionable under Lanham Act § 43(a)(1)(B), even if not directed at product qualities or characteristics.
2. Whether the distributor message could qualify as “commercial advertising or promotion” (and commercial speech) under § 43(a).
3. Whether the district court correctly dismissed or resolved on summary judgment P&G’s Utah tort claims arising from the dissemination of the message.

## Decision

- The court affirmed in part and reversed in part the district court’s judgment.
- It reversed the grant of summary judgment on the Lanham Act claim to the extent the district court categorically excluded the message from § 43(a) by limiting the statute to product qualities or characteristics, and remanded for further proceedings.
- It held there was at least a triable issue whether the message was commercial speech and part of commercial advertising or promotion within the Amway distribution network.
- It affirmed in part and reversed in part the dismissal and summary judgment rulings on the Utah tort claims, leaving some claims and defendants to proceed on remand while sustaining dismissal/summary judgment as to others.

## Legal Principles

- Lanham Act § 43(a)(1)(B) reaches misrepresentations made in “commercial advertising or promotion” about another’s goods, services, or “commercial activities”; it is not limited to false statements about a product’s intrinsic qualities or characteristics.
- Allegations framed as moral or religious accusations can fall within § 43(a) when they assert or imply verifiable facts about a competitor’s business conduct (e.g., use of profits) and are used to influence purchasing decisions in a competitive context.
- Whether a communication constitutes “commercial advertising or promotion” depends on context and function, including dissemination within a commercial sales network, identification of competing products, and an exhortation to purchase the speaker’s products.
- When a district court resolves a § 43(a) claim on an overly narrow legal construction of the statute, fact-bound questions such as commerciality, falsity, materiality, and causation may require further proceedings.
- State-law defamation and injurious falsehood/product disparagement claims based on the same publication may survive or fail depending on claim-specific elements (including publication, falsity, and damages) and the evidentiary record as to particular defendants.

## Conclusion

The Tenth Circuit held that § 43(a) can apply to false promotional accusations that a competitor’s profits support Satanism because such statements may misrepresent the competitor’s “commercial activities,” and it remanded for further proceedings while affirming dismissal or summary judgment on portions of P&G’s related Utah tort claims.


Proctor & Gamble Co. v. Haugen, 222 F.3d 1262 (10th Cir. 2000)