[Copyrighted Material Omitted]
Appeal from the United States District Court for the Western District of Texas.
For EASTMAN CHEMICAL COMPANY, Plaintiff - Appellee: Richard Wayne Harrison, Esq., Kevin W. Brown, Esq., Fritz, Byrne, Head & Harrison, P.L.L.C., Austin, TX.
For PLASTIPURE, INCORPORATED, CERTICHEM, INCORPORATED, Defendants - Appellants: Bryan David Lauer, Scott, Douglass & McConnico, L.L.P., Austin, TX; John Christopher Reynolds, Esq., Solace Kirkland Southwick, Esq., Reynolds Frizzell LLP, Houston, TX; Robert Green Hargrove, Hays & Owens, L.L.P., Austin, TX.
For AMERICAN CHEMISTRY COUNCIL, Amicus Curiae: Thomas C. Morrison, Benjamin Gross Shatz, Manatt, Phelps & Phillips, L.L.P., New York, NY.
Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
JENNIFER WALKER ELROD,
After a jury found that PlastiPure, Inc. and CertiChem, Inc. violated the Lanham Act by making false statements of fact about their competitor's product, the district court entered an injunction against both companies. On appeal, PlastiPure and CertiChem challenge the jury verdict and the injunction on various grounds, including that their statements constituted non-actionable scientific opinions rather than actionable statements of fact. Because the Lanham Act prohibits false commercial speech even when that speech makes scientific claims, and because Appellants' other contentions lack merit, we AFFIRM.
Eastman Chemical Company (Eastman) manufactures a plastic resin called Tritan and sells it to manufacturers of water bottles, baby bottles, food containers, and other consumer products. Eastman launched Tritan commercially in 2007 as an alternative to polycarbonate, which at that point was the primary plastic used in food contact applications. Shortly after Tritan's launch, consumers became concerned that an ingredient in polycarbonate, bisphenol A (BPA), could be harmful to humans. The concerns about BPA were premised on scientific studies purporting to show that BPA could activate estrogen receptors in the human body. Chemicals that mimic estrogen are said to possess estrogenic activity (EA), and they can trigger hormone-dependent cancers, reproductive abnormalities, and other negative health conditions. Eastman recognized that consumer fears about polycarbonate could be a boon to its sales of Tritan, provided that it could assure potential clients that Tritan does not exhibit EA. To that end, Eastman conducted a battery of tests on Tritan which, according to Eastman, showed that Tritan does not exhibit EA.
PlastiPure and CertiChem also hoped to seize on the opportunity created by the public's desire for BPA-free plastics. PlastiPure and CertiChem are companies founded by Dr. George Bittner, a professor of neurobiology at the University of Texas at Austin. PlastiPure developed a plastic resin that it claims does not exhibit EA and, like Eastman, PlastiPure sells its plastic resin to product ...