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.
Thus, the first step is to identify the specific representation that can actually be proven false. The subjective score may be protected opinion. The false claim of independence, the falsified certification, or a specific factual implication may not be, and after Enigma, even seemingly evaluative language can be factual in the right context.
Whose Goods Does the Review Promote?
The next hurdle is whether the speech is “commercial advertising or promotion.” Under the Ninth Circuit’s formulation in Coastal Abstract, the statement must be made “for the purpose of influencing consumers to buy defendant’s goods or services.” That is a judicial gloss on the statute, and it created an obvious problem in Ariix: the Guide functioned as advertising for Usana’s supplements, not for NutriSearch’s own guidebook.
The Ninth Circuit did not resolve that question. It remanded, observing that an agency relationship between the reviewers and Usana, giving the reviewers a vested interest in Usana’s sales, “might be enough.” The First Databank cases show the other side of the line. There, a drug-information database generated subscription revenue and influenced third parties’ decisions, but the court found no comparable economic tie between the challenged coding and those third parties’ sales. The database was therefore not commercial speech, and, on an independent ground, the plaintiffs had not shown that the coding was undertaken to promote First Databank’s own goods or services. See Exeltis USA Inc. v. First Databank, Inc., 520 F. Supp. 3d 1225 (N.D. Cal. 2021); Alfasigma USA, Inc. v. First Databank, Inc., 525 F. Supp. 3d 1088 (N.D. Cal. 2021).
The Defendant Matters
The identity of the defendant can change the analysis. A claim against the reviewer must bridge the gap between the reviewer’s speech and a third party’s product. A claim against the seller that arranged, adopted, or used the deceptive review can be more direct, because the seller is using the representation to promote its own goods.
Our client pursued that route against Usana itself. In Ariix, LLC v. Usana Health Sciences, Inc., No. 2:22-cv-00313-JNP-DAO, 2023 WL 2574319 (D. Utah Mar. 20, 2023), Ariix alleged Usana used NutriSearch’s purported independence to promote Usana’s supplements and that NutriSearch and its author acted as Usana’s agents. The court denied Usana’s motion to dismiss on both theories. It held that Ariix plausibly alleged direct liability, because Usana had used the misrepresentations in its own marketing, and secondary liability, because the alleged facts supported an agency relationship and actual authority to make the representations at issue. Bona Law represented Ariix in the remand Lanham Act claims as well. A seller that uses or directs a supposedly independent endorsement can face a materially different Lanham Act analysis from the nominally independent reviewer.
A related route treats the certification itself as the certifier’s commercial representation. In U.S. Structural Plywood Integrity Coalition v. PFS Corp., 524 F. Supp. 3d 1320 (S.D. Fla. 2021), the court held that certification stamps were the certifiers’ own statements, because the value of a certification business depends on purchasers treating the stamp as the certifier’s assurance of compliance. It also sustained a contributory false-advertising theory on allegations that the certifiers knowingly or materially participated in the manufacturers’ false advertising. A third-party certifier can thus face direct or secondary liability when its own commercial role supplies the missing connection.
The Causation Requirement
Even a false commercial representation does not give everyone it touches a Lanham Act claim. Under Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), a false-advertising plaintiff must allege an injury to a commercial interest in sales or business reputation, and must show that the injury was proximately caused by the defendant’s deception.
As examples, a New York federal court dismissed Lanham Act claims against another one of our clients, citing, in part, lack of causation and standing and in another case an Oregon federal court did the same here, for claims against that same client.
Ariix did not create a special causation rule for review cases. Judge Collins, dissenting, argued that Ariix had not tied its injury to advertising of the Guide itself, and noted that Ariix did not sell a competing guide whose sales had suffered. The majority did not adopt that reasoning. It reversed and remanded without reaching it. The governing standard therefore remains Lexmark’s: economic or reputational injury flowing directly from the deception wrought by the challenged advertising.
Thus, a plaintiff should plead the causal chain, not merely the deception. Identify the lost sales or reputational harm the false representation produced, and show how the representation reached the buyers whose decisions caused that harm. Lexmark does not require direct competition, but it does require proximate cause, and it cautions that a plaintiff who does not compete with the defendant will often have a harder time establishing it. An injury that depends on the independent choices of third parties, several steps removed from the deception, will not carry the burden.
How Far Ariix Has Reached
Later decisions show both the reach and the limits of Ariix. Enigma used its line between subjective opinion and verifiable fact. The First Databank cases applied its commercial-speech framework but found the challenged database noncommercial. Together they confirm that Ariix is not a rule that suspicious or lucrative reviews are automatically advertising. It is a framework for asking who is speaking, why, what factual message the speech conveys, and what economic relationship lies behind it.
Vitamins Online, Inc. v. Heartwise, Inc., 71 F.4th 1222 (10th Cir. 2023), shows an analogous problem in ordinary online reviews. The seller directed employees to up-vote favorable Amazon reviews and down-vote unfavorable ones, and gave free product in exchange for reviews, practices the courts found created a misleading impression about the reviews consumers were seeing. The Tenth Circuit affirmed liability and, in a two-player market, approved a rebuttable presumption as to the fact of injury, while still requiring further proof of the amount. Vitamins Online did not rest on Ariix, but the cases share an insight: manipulating the apparent independence of the information consumers rely on can itself convey a misleading commercial message.
The Modern Fronts
The same problem now appears in forms that barely existed when the Ariix litigation began: paid rankings, affiliate reviews, insider endorsements, online influencers, purchased social-media metrics, and AI-generated reviews. The technology does not change the questions. A plaintiff still must identify commercial advertising or promotion, a false or misleading representation of fact, materiality, sufficient dissemination, and a commercial injury proximately caused by the deception.
The FTC Has Moved in the Same Direction
Federal regulation now addresses many of these practices. The Federal Trade Commission’s Rule on the Use of Consumer Reviews and Testimonials, 16 C.F.R. Part 465, which took effect in 2024, prohibits specified fake or false reviews, review incentives conditioned on sentiment, undisclosed insider reviews, review suppression, and the misuse of fake indicators of social-media influence. Section 465.6 is the closest to Ariix: it bars a business from misrepresenting that a review website or entity it controls, owns, or operates provides independent reviews of products, including its own. The rule is an enforcement regime for the Commission, however, and it does not supply the elements a competitor must prove under the Lanham Act.
The FTC’s Endorsement Guides sharpen the comparison. They call for disclosure of unexpected material connections between endorsers and sellers, and one example addresses a nominally independent review site that takes payment from manufacturers for favorable placement, which the FTC treats as deceptive. The Lanham Act inquiry is different. Ariix advanced at the pleading stage because it identified concrete factual representations, the express claim of independence and the objective certification, not merely an undisclosed relationship. Because the Lanham Act imposes no freestanding duty to disclose, the misleading factual representation, whether express or fairly implied, is what a private plaintiff must identify.
Where Claims Still Fail
Ariix forecloses a few categorical defenses. A defendant cannot win dismissal simply by calling the publication a “product review” if the pleaded facts plausibly show that its primary purpose was commercial. Nor is every statement in a review opinion. An express claim of independence or an objectively verifiable certification can be factual even when the accompanying star rating is not.
But a plaintiff suing the reviewer must still satisfy the unresolved “defendant’s goods or services” requirement, on which Ariix suggests that agency or a vested economic interest may matter but does not draw the outer line. Lexmark independently requires a commercial or reputational injury proximately caused by the deception. And where the defendant is an online platform rather than the author, Section 230 of the Communications Decency Act can apply. It shields a provider from being treated as the publisher of content supplied by another, but not a defendant that is “responsible, in whole or in part, for the creation or development” of the content, which is what a party that fabricates or manipulates the reviews has done.
The genuinely open question from Ariix is how close the reviewer’s economic relationship to the promoted seller must be before that seller’s goods can be treated as the reviewer’s for purposes of “commercial advertising or promotion.” The Section 230 intellectual-property exception, by contrast, is not open in this circuit. The Ninth Circuit has held that a Lanham Act false-advertising claim does not fall within Section 230(e)(2)’s intellectual-property exception, so a platform’s Section 230 protection turns on the conduct and the subsection invoked, not on that carve-out. See Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1052-53 (9th Cir. 2019).
A Practical Checklist for False Advertising Claims Based Upon Reviews
To evaluate a disguised-review claim, begin with the commercial-speech question: is the challenged speech genuinely editorial, or is it commercial speech under Bolger and Ariix? Next, identify the specific factual representation, whether independence, an objective certification, or another verifiable claim, express or implied. Then test whether the speech is “commercial advertising or promotion,” including sufficient dissemination and the unresolved defendant’s-goods requirement. Then trace the deception to an injury in sales or business reputation under Lexmark. Finally, account for platform and procedural issues, including Section 230, before settling on defendants and claims.
Conclusion
Ariix v. NutriSearch did not make every rigged rating actionable. It established something more precise and more useful. Alleged economic manipulation can turn a purportedly independent review into commercial speech, and statements embedded in that review, such as a false claim of independence or an objectively verifiable certification, can be actionable representations of fact. A plaintiff must still satisfy the rest of the Lanham Act, including the reserved question of whose goods the speech promotes and Lexmark’s requirement of a proximately caused commercial injury. The decision’s lasting value is that it gives courts a way to separate genuine opinion from covert commercial promotion without treating every unfavorable review as false advertising.
Bona Law represented Ariix in the Ninth Circuit appeal and in its subsequent action against Usana, and the firm represents both plaintiffs and defendants in Lanham Act false-advertising and unfair-competition disputes. If your business is facing manipulated reviews, deceptive endorsements, or another false-advertising problem, contact us.
Image by Alex Yomare from Pixabay