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Can Publishing Research in a Peer-Reviewed Journal Constitute False Advertising?



Scientists like to publish their research so as to advance scientific knowledge. Scientific journals often vet proposed articles and suggest changes or further research in order to exercise some quality control over the research published. However, according to a California district court opinion issued this week, when the journal publisher also has a commercial interest that may be affected (positively or negatively) by the research, and suggests changes or clarifications to the proposed article, that publisher may be held liable for false advertising.

In Crossfit v. National Strength and Conditioning Association, plaintiff Crossfit sued the defendant Association (which, among other things, certifies fitness instructors and publishes the “Journal of Strength and Conditioning Research”) for false advertising and related claims because of statements made in an article published in the journal by unaffiliated researchers about Crossfit’s training regime.

The defendant moved for summary judgment, arguing that merely publishing a peer-reviewed journal that contained an article analyzing the plaintiff’s exercise program was not commercial speech that could give rise to false advertising liability. The court denied summary judgment, finding that because the defendant suggested certain changes to the article and it arguably competed with the plaintiff, the article could be deemed commercial speech giving rise to false advertising liability.

This is an unusual result, and likely will merit some searching appellate review if it gets that far. But for right now, publishers beware if the article you publish may contain arguably unsubstantiated commentary about one of your competitors.

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