11th Circuit Weighs in on Intersection of Lanham Act and FDCA Protein Powder Labeling Requirements

A battle between two dietary supplement manufacturers has revived interested in the intersection between the Lanham Act and federal labeling regulations. The issue: can an advertiser challenge a competitor's product label for false advertising under the Lanham Act if it complies with applicable federal regulations? The Supreme Court of the United States answered the question affirmatively in 2014 with regard to food products, and now the 11^th Circuit has weighed in with regard to dietary supplements. In Hi-Tech Pharms, Inc. v HBA Intl's Corp, 2018 WL 6314282, No. 17-13884 (11^th Cir. Dec 4, 2018), the Circuit Court ruled that a Lanham Act claim for unfair or deceptive advertising could proceed even if a supplement's label had complied with the requirements of the federal Food, Drug, and Cosmetic Act (FDCA).

Background

The FDCA does not allow a private litigant to pursue action for misbranding of a dietary supplement. Accordingly, brands frustrated by a competitor's label claims might seek recourse for false advertising through the Lanham Act's Section 43 (a). The Lanham Act has trademark provisions to stave off unfair competition, but it also prohibits false advertising and authorizes private suit against those who use a false or misleading description or representation of the "nature, characteristics, [or] qualities" of their goods. The statute is designed to protect and compensate a private party for the damages that flow from such deceptive statements. The intersection between the FDCA and 43(a) claims has led to litigation. If a label meets all federal compliance requirements, could there still be liability under the Lanham Act?