The Antitrust Attorney Blog
Author: Luke Hasskamp
Many modern buyers are skeptical of conventional advertising, so they look for something that seems more independent. They read reviews, check star ratings, and search for the guide, ranking, or “best of” list that promises an assessment free of the seller’s influence. That perceived independence is what makes a rigged review valuable to the company that pays for it, and damaging to the competitor it buries.
In Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107 (9th Cir. 2021), the Ninth Circuit confronted that problem. Bona Law represented Ariix and persuaded the court that a supposedly independent ratings guide, allegedly rigged in exchange for compensation, could be commercial speech and could contain actionable misstatements of fact under the Lanham Act. The court reversed a dismissal, holding that Ariix had plausibly alleged commercial speech, actionable factual statements, and sufficient dissemination. It expressly left for remand whether the guide was “commercial advertising or promotion” of the defendants’ goods.
You can read more about Bona Law’s Lanham Act and False Advertising Practice here. And you can read about its appellate litigation practice here.
This article traces what Ariix decided and what it reserved, along with the questions that decide these cases: what makes a purported review commercial speech, which statements are fact rather than opinion, whose goods the speech promotes, and whether the deception caused a cognizable commercial injury.
What the Ninth Circuit Decided in Ariix
Ariix and Usana competed in the nutritional-supplement market. Our client, Ariix, alleged that NutriSearch’s supposedly independent Guide systematically favored Usana and disadvantaged Ariix in exchange for hundreds of thousands of dollars in speaking and other fees and a hidden marketing arrangement. At the same time, the Guide portrayed itself as a neutral evaluator applying objective scientific criteria and expressly disclaimed any affiliation with the manufacturers it reviewed.
The district court dismissed the complaint with prejudice. It treated consumer product reviews as outside the Lanham Act even when biased or tainted by favoritism. The court concluded the alleged financial relationship did not make the Guide commercial speech, and held that the challenged statements were nonactionable opinion.
The Ninth Circuit reversed. It held that Ariix had plausibly alleged the Guide was “more like a sophisticated marketing sham rather than a product review guide,” and therefore commercial speech, and that Ariix had plausibly alleged actionable factual misrepresentations and sufficient dissemination. The court described the stakes in consumer terms: “when someone falsely claims to be independent, rigs the ratings in exchange for compensation, and then profits from that perceived objectivity,” the speaker has “drowned the public trust for economic gain.” But the court stopped short of holding that Ariix had satisfied every element. It expressly left the “defendant’s goods or services” question, which lies at the heart of “commercial advertising or promotion,” for the district court to decide on remand.
The Commercial-Speech Threshold
The first question in a disguised-review case under the Lanham Act is often whether the challenged speech is commercial at all. Genuine editorial, scientific, and consumer commentary receives substantial First Amendment protection. Commercial speech receives less, and a false or misleading commercial claim clears the first step toward Lanham Act liability. It is only the first step. Commercial speech is not automatically “commercial advertising or promotion,” a separate requirement addressed below.
Ariix applied the familiar factors from Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983): (i) whether the speech is an advertisement; (ii) whether it refers to a specific product; and (iii) whether the speaker has an economic motivation. Those factors are guideposts, not a rigid checklist, and a profit motive alone does not make speech commercial. What mattered in Ariix was the alleged hidden economic arrangement. Commercial motivation need not take the form of a direct sale to the audience, and an indirect financial benefit can count when economic gain is plausibly the primary purpose of the speech. Ariix alleged more than a publisher hoping to sell books. It alleged a concealed marketing arrangement in which the reviewers were paid substantial sums while shaping the Guide to favor Usana.
That reasoning reaches beyond nutritional supplements. Whenever a speaker presents itself as an independent evaluator while taking economic benefits tied to the products it evaluates, Ariix supplies a framework for asking whether ostensibly editorial speech has become commercial.
What Is Actionable, and What Is Just Opinion
A crucial limit runs through Ariix: an evaluative rating is ordinarily opinion, not fact. The Guide’s five-star ratings remained nonactionable even though the author described the methodology as objective and scientific, because selecting and weighting the criteria required subjective judgment. A plaintiff cannot turn a subjective score into a factual representation merely by labeling the methodology “objective.”
The actionable statements lay elsewhere. First, the Guide’s express claim that it was “not associated with any manufacturer” was a representation about itself, capable of being proven true or false. Second, the “Medal of Achievement” certification rested on defined, pass-or-fail criteria, including compliance with specified manufacturing practices and laboratory verification of label claims. Ariix alleged that withholding the medal from a qualifying product falsely implied those objective criteria had not been met, an implication the court found “specific, measurable, and capable of being falsified.”
The Ninth Circuit applied the same fact-versus-opinion principle two years later in Enigma Software Group USA, LLC v. Malwarebytes, Inc., 69 F.4th 665 (9th Cir. 2023). Looking to the totality of the circumstances, the court held that an anti-malware company’s designations of a competitor’s software as “malicious” and a “threat” conveyed verifiable factual assertions in that technical context. Drawing directly on Ariix, the court explained that such a designation “can be reduced to a binary determination based on falsifiable criteria,” and so was actionable rather than mere opinion.