Learn how to draft motions to dismiss for false advertising cases. Explore key legal strategies, defenses, and examples to challenge false advertising claims effectively in court.

False advertising claims can create significant challenges for businesses. A motion to dismiss provides an early opportunity to challenge the legal sufficiency of a plaintiff’s allegations before entering costly discovery or trial. This article explores how to draft an effective motion to dismiss in false advertising cases, covering legal strategies, common defenses, and best practices.

FAQs About Drafting Motions to Dismiss for False Advertising

What is False Advertising?

False advertising involves misleading, deceptive, or untrue statements made in advertising that can harm consumers or competitors. Common claims include:

• Misrepresenting product features or benefits

• False comparisons to competitors

• Deceptive pricing or promotional offers

False advertising claims are governed by laws such as the Lanham Act and various state consumer protection statutes.

What Are Common Grounds for Filing a Motion to Dismiss in False Advertising Cases?

Defendants typically move to dismiss on grounds such as:

• Failure to state a claim: The complaint lacks sufficient factual allegations.

• Lack of standing: The plaintiff did not suffer direct harm from the alleged falsehood.

• Non-actionable statements: The statements are opinions, puffery, or otherwise not legally actionable.

• Lack of materiality: The alleged misrepresentation did not affect consumer purchasing decisions.

How Do You Draft a Motion to Dismiss for False Advertising?

When drafting a motion:

1. State the applicable legal standard: Explain pleading requirements under the Lanham Act or relevant law.

2. Challenge the sufficiency of the allegations: Argue the complaint lacks necessary facts.

3. Highlight the absence of materiality: Show that alleged statements were immaterial to purchasing decisions.

4. Raise standing issues: Assert that the plaintiff lacks standing if not directly injured.

5. Cite supporting case law: Anchor arguments with precedent dismissing similar claims.

6. Request dismissal with prejudice (if appropriate): Especially where amendment would be futile.

What Defenses Are Common in False Advertising Dismissal Motions?

Defendants often assert:

• Truth: The advertisement accurately describes the product or service.

• Puffery: Non-actionable marketing language (“the best burger in town!”).

• Lack of material impact: No effect on consumer decisions.

• No competitive harm: Particularly important when the plaintiff is a competitor rather than a consumer.

How Does a Motion to Dismiss Challenge the Legal Sufficiency of a False Advertising Claim?

Defendants can argue that:

• The complaint lacks sufficient factual detail.

• The statements are not objectively false or misleading.

• There is no plausible connection between the alleged falsehood and the plaintiff’s harm.

When Should a Motion to Dismiss for False Advertising Be Filed?

Motions to dismiss must typically be filed:

• Within 21 to 30 days of being served with the complaint (depending on jurisdiction).

• Before responding with an answer to the complaint.

Early filing helps prevent unnecessary litigation expenses.

What Evidence Can Be Used to Support a Motion to Dismiss?

Although motions to dismiss generally rely only on the complaint’s allegations, defendants may reference:

• Public records (e.g., existing advertisements attached to the complaint)

• Judicially noticeable facts (e.g., widely known product descriptions)

• Surveys or disclaimers (in rare cases where judicial notice is appropriate)

How Does the Lanham Act Affect False Advertising Dismissals?

The Lanham Act requires plaintiffs to show:

• A false or misleading statement of fact

• That materially deceives or influences consumers

• Interstate commerce involvement

• Harm to the plaintiff (e.g., lost sales)

Defendants can target deficiencies in any of these elements at the dismissal stage.

How Can a Defendant Reduce Exposure to False Advertising Claims?

Proactive steps include:

• Carefully vetting advertising claims before publication.

• Using clear disclaimers to limit misinterpretation.

• Consulting legal counsel when launching marketing campaigns.

• Maintaining documentation of claims' accuracy.

What Happens If a Motion to Dismiss Is Denied?

If the motion is denied:

• The case proceeds to discovery, increasing time and costs.

• The defendant can still later file a motion for summary judgment.

• Settlement discussions may become more strategic at this point.

Conclusion

Motions to dismiss are an essential tool in false advertising litigation. By challenging the legal sufficiency of a claim early—based on grounds like truth, puffery, materiality, and standing—defendants can avoid unnecessary litigation costs and focus on defending valid disputes.

✔ Challenge weak false advertising claims before discovery.
✔ Focus on factual insufficiency, materiality, and standing.
✔ Use strong precedent to back your arguments.

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