First of all, why does it matter?  It matters because if a company’s materials are considered “advertising” – as opposed to, say, corporate filings, job postings or safety instructions – then such materials can (at a minimum) give rise to false advertising claims from a competitor or regulator and to right of publicity claims from individuals whose names, likenesses or persona are used in the materials.  Usually, it’s obvious when a company is engaged in advertising: the assets are readily recognizable as such or it’s otherwise clear that the company is trying to sell something, whether a product or service, or even just itself as a reputable brand or company.

Sometimes, however, it's not so obvious and a couple of recent cases highlight this issue.  One is a district court case in California involving two ticket and event management services. (H/T to Rebecca Tushnet for alerting me to this case on her excellent blog.) In that case, Spotlight Ticket Management, Inc. v. Concierge Live LLC, No. 2:24-cv-00859-WLH-SSC, 2024 WL 4866813 (C.D. Cal. Aug. 30, 2024), the purported “advertisements” giving rise to false advertising claims consisted of sections of the defendant's public website containing user support articles and presentation materials. 

The court evaluated the website pages and determined that “the content on the website is written in a question-and-answer format suggesting that this material is a guide for users of Defendant's platform. Likewise, the presentation slides contain answers to the relevant questions in bullet point format with screen shots of Defendant's platform and step-by-step instructions.”  Accordingly, the Court found that, notwithstanding their public availability on the website, accessible and directed to users, “these materials are more akin to guides or instruction manuals and not commercial advertisement.”

The second case was one decided by NAD: Beyond Air Products (Beyond Air, Inc.), NAD Fast Track SWIFT, Case #7391 (11/27/24).  There, in a case involving two competitors in the market for iNO delivery systems used to treat neonates with hypoxic respiratory failure associated with pulmonary hypertension (!), one company challenged the advertiser’s claim that the advertiser’s products are safer than the challenger’s and that the challenger’s products are unsafe. At issue were the advertiser’s “Corporate Presentation,” available through a link on its website, and a “Fact Sheet,” which the challenger believed was distributed and authored by the advertiser’s Regional Business Manager. 

For purposes of NAD’s analysis as to the substance of the claims themselves, it appears to have been a given that these materials constituted “advertising” for purposes of NAD’s jurisdiction.  Indeed, NAD’s analysis begins with the statement that “[i]t is critical that consumers receive accurate information for the health products they purchase. That includes making sure the information marketers provide about the benefits of health-related products are accurate, so consumers, including health care professionals, can make informed decisions.”  Thus, materials used by the advertiser to tout the safety of its products (especially relative to a competitor’s) to potential buyers (in this case, health professionals rather than patients themselves) were considered advertising and thus subject to the heightened substantiation requirements of all health-related advertising claims.  

While it’s not clear if the advertiser even argued that the materials didn’t constitute “advertising,” NAD’s detailed discussion of the claims conveyed by them makes clear that even though the materials comprised “product descriptions, references to safety guidelines and operator’s manuals for the competing products and arguments related to design differences,” they were considered ”advertising," because they conveyed a message of superiority safety and were disseminated, presumably, for purposes of marketing and selling the company's products to potential customers. 

Some takeaways?

Not all speech published by companies will necessarily be determined to be “advertising” by a court or NAD, but all speech publicly disseminated may well be scrutinized as such, by competitors, regulators, and even class action lawyers. 

Assets with competitive claims, and especially superiority claims, are are more likely to be considered advertising, no matter the type of asset.

Even materials are not widely disseminated or published, or used only in direct 1-to-1 sales efforts, can be considered advertising.  Think sales decks, presentations, pitches.

Taking creative license with product claims, even in materials that are not obviously ads, can be risky: you really never know who will get their hands on your materials.  (Think former employees now working for a competitor.)

NAD’s jurisdiction is broad and what NAD will consider to be “advertising” subject to its review is expansive. As addressed in an earlier case, even B2B materials distributed exclusively to entities subject to a nondisclosure agreement that should never have been seen by the challenger can be considered advertising and subject to NAD review.