Case: 13-51087 Document: 00512879044 Page: 1 Date Filed: 12/22/2014
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`December 22, 2014
`
`Lyle W. Cayce
`Clerk
`
`No. 13-51087
`
`
`
`EASTMAN CHEMICAL COMPANY,
`
`
`
` Plaintiff – Appellee,
`
`
`v.
`
`PLASTIPURE, INCORPORATED; CERTICHEM, INCORPORATED,
`
`
`
` Defendants – Appellants.
`
`
`
`
`Appeal from the United States District Court
`for the Western District of Texas
`
`
`
`
`
`Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
`JENNIFER WALKER ELROD, Circuit Judge:
`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.
`
`

`
` Case: 13-51087 Document: 00512879044 Page: 2 Date Filed: 12/22/2014
`
`No. 13-51087
`I.
`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 manufacturers. CertiChem’s primary focus is on testing materials
`for various sorts of hormonal activity.
`In 2011, CertiChem published an article summarizing the results of its
`testing of more than 500 commercially available plastic products. The article
`was published in Environmental Health Perspectives, a peer-reviewed journal
`published by the National Institutes of Health. Although products made with
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` Case: 13-51087 Document: 00512879044 Page: 3 Date Filed: 12/22/2014
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`No. 13-51087
`Tritan were among the products tested, Tritan was not mentioned by name in
`the article.
`After research on the article was completed, but prior to the article’s
`publication, PlastiPure published a three-page sales brochure entitled “EA-
`Free Plastic Products: Beyond BPA-Free” and distributed the brochure at trade
`shows and directly to potential customers. The brochure contains a chart that
`depicts products containing “Eastman’s Tritan” as having significant levels of
`EA. The caption to the chart states: “Examples of test results of products
`claiming to be EA-free or made from materials claiming to be EA-free are given
`in the figure to the right. Most examples are made from Eastman’s Tritan™
`resin.”
`
`Based on the sales brochure and other marketing materials, Eastman
`filed suit against PlastiPure and CertiChem, alleging false advertising under
`the Lanham Act, business disparagement, tortious interference, unfair
`competition, and conspiracy. At trial, both sides offered expert testimony
`about the proper definition of EA, the proper way to test for EA, and whether
`Tritan exhibits EA. After a jury verdict in favor of Eastman, the district court
`entered judgment against PlastiPure and CertiChem, ruling that both
`companies willfully violated Section 43(a) of the Lanham Act, 15 U.S.C.
`§ 1125(a), engaged in unfair competition under Texas common law, and
`conspired with one another in connection with these violations. The district
`court, after denying their motion for judgment as a matter of law, enjoined
`PlastiPure and CertiChem from distributing the above-referenced sales
`brochure and from:
`making any verbal or written statement, expressly or by
`implication, to any third party in connection with any advertising,
`promotion, offering for sale, or sale of goods or services or in any
`other commercial manner that:
`
`
`3
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` Case: 13-51087 Document: 00512879044 Page: 4 Date Filed: 12/22/2014
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`No. 13-51087
`(1) Tritan resins and products leach chemicals having
`significant estrogenic activity; (2) Tritan, or products
`made with Tritan, are dangerous to human health
`because they exhibit estrogenic activity; or (3) Tritan
`resins and products leach chemicals having significant
`estrogenic activity after common-use stresses.
`
`PlastiPure and CertiChem make three arguments on appeal. First, they
`
`argue that the district court’s injunction is improper because their statements
`were scientific opinions rather than actionable facts. Second, they argue that
`the jury verdict is based on legally insufficient evidence. Third, they argue
`that the district court’s jury instructions and verdict form contain errors
`warranting reversal.
`
`II.
`Appellants contend that the district court should not have entered its
`injunction because Appellants’ statements about Tritan are not actionable
`statements of fact under the Lanham Act. We review the grant of a permanent
`injunction for abuse of discretion. Abraham v. Alpha Chi Omega, 708 F.3d 614,
`620 (5th Cir. 2013). An abuse of discretion may be found where the trial court
`“(1) relies on clearly erroneous factual findings when deciding to grant or deny
`the permanent injunction, (2) relies on erroneous conclusions of law when
`deciding to grant or deny the permanent injunction, or (3) misapplies the
`factual or legal conclusions when fashioning its injunctive relief.” Schlotzsky’s,
`Ltd. v. Sterling Purchasing & Nat’l Distribution Co., 520 F.3d 393, 402 (5th
`Cir. 2008) (internal quotation marks omitted).
`Section 43(a) of the Lanham Act prohibits false advertising. 15 U.S.C.
`§ 1125(a). It provides a civil cause of action against any person who, in
`connection with goods or services, uses any “false or misleading description of
`fact, or false or misleading representation of fact . . . .” Id. § 1125(a)(1).
`“Essential to any claim under section 43(a) of the Lanham Act is a
`
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` Case: 13-51087 Document: 00512879044 Page: 5 Date Filed: 12/22/2014
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`No. 13-51087
`determination of whether the challenged statement is one of fact—actionable
`under section 43(a)—or one of general opinion—not actionable under section
`43(a).” Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 495–96 (5th Cir.
`2000).
`We have held that “[a] statement of fact is one that (1) admits of being
`adjudged true or false in a way that (2) admits of empirical verification.”
`Presidio Enters., Inc. v. Warner Bros. Distrib. Corp., 784 F.2d 674, 679 (5th Cir.
`1986). Similarly, we have said that the challenged statement must make a
`“‘specific and measurable claim, capable of being proved false or of being
`reasonably interpreted as a statement of objective fact.’” Pizza Hut, 227 F.3d
`at 496 (quoting Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d
`725, 731 (9th Cir. 1999)); see also Southland Sod Farms v. Stover Seed Co., 108
`F.3d 1134, 1145 (9th Cir. 1997) (stating that a statement of fact is one that
`makes “a specific and measurable advertisement claim of product superiority”).
`In contrast, “[b]ald assertions of superiority” and “exaggerated, blustering, and
`boasting statement[s]” are non-actionable opinions. Pizza Hut, 227 F.3d at
`496–97. Predictions of future events are also non-actionable expressions of
`opinion. Presidio Enters., 784 F.2d at 680.
`Appellants argue that commercial statements relating to live scientific
`controversies should be treated as opinions for Lanham Act purposes.
`According to Appellants, enjoining statements that embrace one side of an open
`scientific debate would stifle academic freedom and inhibit the free flow of
`scientific ideas, contrary to the principles undergirding the First Amendment.
`Accordingly, they urge us to classify their statements about Tritan’s EA
`content as opinions rather than actionable facts.
`As primary support for their argument, Appellants offer the Second
`Circuit’s opinion in ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490
`(2d Cir. 2013). In ONY, the parties were rival producers of non-human
`5
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` Case: 13-51087 Document: 00512879044 Page: 6 Date Filed: 12/22/2014
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`No. 13-51087
`surfactants, which are biological substances used to treat respiratory
`conditions in infants. The defendants conducted a study of the relative efficacy
`of different surfactants, concluding that their own surfactant was associated
`with a lower mortality rate and a shorter length of hospital stay than the
`plaintiff’s surfactant. The defendants hired several physicians to present the
`study’s findings at pediatric society meetings, and those physicians published
`the study’s findings in an article in a peer-reviewed journal. After the article’s
`publication, the defendants “issued a press release touting its conclusions and
`distributed promotional materials that cited the article’s findings.” Id. at 495.
`The plaintiff in ONY filed a complaint alleging, inter alia, tortious
`interference and violations of the Lanham Act. According to the ONY plaintiff,
`the published article contained “five distinct incorrect statements of fact about
`the relative effectiveness” of the companies’ surfactants. Id. at 494. The
`district court dismissed the complaint and the Second Circuit affirmed. The
`Second Circuit began its analysis by noting that “[s]cientific academic
`discourse poses several problems for the fact-opinion paradigm of First
`Amendment jurisprudence.” Id. at 496. Although scientific articles typically
`make specific and measurable claims that can be reasonably interpreted as
`statements of objective fact, “it is the essence of the scientific method that the
`conclusions of empirical research are tentative and subject to revision, because
`they represent inferences about the nature of reality based on the results of
`experimentation and observation.” Id. After a thorough analysis, the Second
`Circuit concluded that the First Amendment places scientific debates
`unfolding within the scientific community beyond the reach of the Lanham Act.
`According to the Second Circuit, statements in scientific literature “are more
`closely akin to matters of opinion, and are so understood by the relevant
`scientific communities.” Id. at 497.
`
`6
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` Case: 13-51087 Document: 00512879044 Page: 7 Date Filed: 12/22/2014
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`No. 13-51087
`Appellants insist that the present case is on “all fours” with ONY. We
`disagree. The plaintiff in ONY sought to enjoin statements made within the
`academic literature and directed at the scientific community. In that context,
`the Second Circuit concluded that the defendants’ statements should be
`treated as opinions, else the prospect of defamation liability would stifle
`academic debate and trench upon First Amendment values. See id. at 497
`(“[T]he trial of ideas plays out in the pages of peer-reviewed journals, and the
`scientific public sits as the jury.”). Here, in contrast, Eastman did not sue
`Appellants for publishing an article in a scientific journal. Rather, Eastman
`sought to enjoin statements made in commercial advertisements and directed
`at customers. As the district court aptly summarized:
`This lawsuit is not about Dr. Bittner’s scientific paper. It is
`about statements made
`in commercial advertisements or
`promotions, not statements made in a peer-reviewed journal. It is
`about statements made to consumers, not scientists. It is about
`statements made without the necessary context presented by a full
`scientific study, such as a description of the data, the experimental
`methodology, the potential conflicts of interest, and the differences
`between raw data and the conclusions drawn by the researcher.
`
`
`Eastman Chem. Co. v. PlastiPure, Inc., 969 F. Supp. 2d 756, 764 (W.D. Tex.
`2013). In this commercial context, the First Amendment is no obstacle to
`enforcement of the Lanham Act. See Zauderer v. Office of Disciplinary Counsel
`of Supreme Court of Ohio, 471 U.S. 626, 638 (1985) (“The States and the
`Federal Government are free to prevent the dissemination of commercial
`speech that is false, deceptive, or misleading . . . .”); see also Cent. Hudson Gas
`& Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 562–63 (1980)
`
`7
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` Case: 13-51087 Document: 00512879044 Page: 8 Date Filed: 12/22/2014
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`No. 13-51087
`(“The Constitution therefore accords a lesser protection to commercial speech
`than to other constitutionally guaranteed expression.”).1
`Given the applicable binding precedent, it is of no moment that the
`commercial speech in this case concerned a topic of scientific debate.
`Advertisements do not become immune from Lanham Act scrutiny simply
`because their claims are open to scientific or public debate. Otherwise, the
`Lanham Act would hardly ever be enforceable—“many, if not most, products
`may be tied to public concerns with the environment, energy, economic policy,
`or individual health and safety.” Cent. Hudson, 447 U.S. at 563 n.5. The
`Supreme Court has “made clear that advertising which links a product to a
`current public debate is not thereby entitled to the constitutional protection
`afforded noncommercial speech.” Bolger v. Youngs Drug Products Corp., 463
`U.S. 60, 68 (1983) (internal quotation marks omitted); see also Recent Case,
`127 Harv. L. Rev. 1815, 1819 (2014) (“Dissemination of a scientific article as
`part of a company’s marketing campaign is for promotional purposes and
`therefore qualifies as commercial speech.”). The First Amendment ensures a
`robust discourse in the pages of academic journals, but it does not immunize
`false or misleading commercial claims. See, e.g., Church & Dwight Co. v.
`Clorox Co., 840 F. Supp. 2d 717, 722–23 (S.D.N.Y. 2012) (enjoining commercial
`
`
`1 Jurists and commentators have urged the Supreme Court to abandon the distinction
`between commercial and non-commercial speech. See, e.g., 44 Liquormart, Inc. v. Rhode
`Island, 517 U.S. 484, 518–28 (1996) (Thomas, J., concurring in part and concurring in
`judgment); Alex Kozinski & Stuart Banner, Who’s Afraid of Commercial Speech?, 76 Va. L.
`Rev. 627 (1990); see also Martin H. Redish, Product Health Claims and the First Amendment:
`Scientific Expression and the Twilight Zone of Commercial Speech, 43 Vand. L. Rev. 1433
`(1990) (acknowledging that “the Court has allowed certain forms of regulation for commercial
`speech that clearly would be impermissible for more traditional subjects of expression,” but
`arguing that commercial-scientific speech should be “viewed not as commercial, but rather
`as fully protected scientific expression. To hold otherwise would be to penalize traditionally
`protected expression for no reason other than the communicator’s personal motivation for
`making that expression. Motivation never has influenced the level of protection given to
`speech in other contexts and its use cannot be rationalized under first amendment theory.”).
`8
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` Case: 13-51087 Document: 00512879044 Page: 9 Date Filed: 12/22/2014
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`No. 13-51087
`claims as literally false because tests supporting those claims were unreliable);
`Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 944 (3d Cir. 1993) (enjoining claims
`that Pennzoil motor oil outperformed Castrol motor oil with respect to viscosity
`breakdown); McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co., 938 F.2d 1544,
`1549 (2d Cir. 1991) (enjoining claims that Excedrin was scientifically superior
`to Tylenol at relieving pain).
`Appellants make much of the fact that the Second Circuit in ONY also
`dismissed a tortious interference claim regarding the defendants’ “touting and
`distributing the article’s findings for promotional purposes.” Id. at 498–99.
`Even if it were binding on us, that portion of the Second Circuit’s holding would
`not affect the analysis here, for two reasons. First, the Second Circuit
`addressed secondary distribution of the article in the context of a state law
`tortious interference claim—not in the context of the Lanham Act. The Second
`Circuit did not hold that promotional materials embracing one side of a
`scientific debate are opinions under the Lanham Act; rather, it held that the
`act of distributing those statements did not give rise to liability for tortious
`interference. Second, the nature of the secondary distribution in ONY is
`dissimilar to that which occurred in this case. In ONY, the secondary
`distribution was limited to the issuance of a press release summarizing the
`article’s findings and dissemination of the article itself. Here, the secondary
`distribution did not include any dissemination of the article; in fact, the sales
`brochure was distributed prior to the article’s publication. Nor did the sales
`brochure simply tout the article’s findings—the sales brochure specifically
`highlights the alleged EA content of Tritan, but the article never even
`mentions Tritan by name. As the district court recognized, the different results
`in ONY and in this case reflect the difference between presenting an article’s
`conclusions and “transform[ing] snippets of . . . a paper which never mentions
`
`9
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` Case: 13-51087 Document: 00512879044 Page: 10 Date Filed: 12/22/2014
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`No. 13-51087
`Tritan or Eastman by name . . . into commercial advertisements claiming
`Tritan is harmful.” Eastman Chem. Co., 969 F. Supp. 2d at 764.
`Application of the Lanham Act to Appellants’ promotional statements
`will not stifle academic freedom or intrude on First Amendment values. By its
`terms, the injunction only applies to statements made “in connection with any
`advertising, promotion, offering for sale, or sale of goods or services.”
`Appellants may continue to pursue their research and publish their results;
`they simply may not push their product by making the claims the jury found
`to be false and misleading.2
`
`III.
`Appellants argue that the jury’s verdict must be reversed because “there
`is no legally sufficient evidence demonstrating that Tritan does not have EA.”
`According to Appellants, the jury had no basis on which to conclude that
`Appellants’ statements about Tritan’s EA were false. In response, Eastman
`contends that “substantial trial evidence” showed that Tritan is free of EA, and
`that “the jury reasonably concluded that Defendants’ statements to the
`contrary were affirmatively false.” Eastman also points out that Appellants
`
`
`2 The district court’s injunction permits Appellants to “seek relief from the injunction”
`if new research proves “the statements the jury found to be false and misleading are no longer
`false and misleading . . . .” According to Appellants, the nature of the district court’s
`injunction reveals that Appellants’ statements are not statements of objective fact: “a
`statement of historical fact (e.g., ‘Tritan has EA’) cannot be false on one day, and true on the
`next.” The fact that Appellants might be able someday to prove that their statements are
`true does not make the injunction improper. If it did, companies could make all sorts of
`unsupported claims and then avoid liability by arguing that they might be able to prove the
`truth of the claims at some point in the future. Instead, when a jury finds statements to be
`false, an injunction properly issues and then can be modified or dissolved if factual
`circumstances change. See ICEE Distribs., Inc. v. J&J Snack Foods Corp., 445 F.3d 841, 850
`(5th Cir. 2006) (“Modification of an injunction is appropriate when the legal or factual
`circumstances justifying the injunction have changed.”); see also Basic Research, L.L.C. v.
`Cytodyne Technologies, Inc., No. 2:99-CV-343K, 2000 WL 33363261, at *11 (D. Utah Dec. 20,
`2000) (vacating injunction in Lanham Act case after defendants conducted additional tests
`that supported defendants’ scientific claims).
`10
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`No. 13-51087
`fail to challenge the jury’s finding that the statements were misleading, which
`serves as an independent basis of liability under the Lanham Act.
`“[O]ur standard of review with respect to a jury verdict is especially
`deferential.” SMI Owen Steel Co., Inc. v. Marsh U.S.A., Inc., 520 F.3d 432, 437
`(5th Cir. 2008) (internal quotation marks omitted). “Although we review the
`denial of a motion for judgment as a matter of law de novo, we apply the same
`legal standard as the district court.” E.E.O.C. v. Boh Bros. Constr. Co., 731
`F.3d 444, 451 (5th Cir. 2013) (en banc). “Under that standard, a litigant cannot
`obtain judgment as a matter of law ‘unless the facts and inferences point so
`strongly and overwhelmingly in the movant’s favor that reasonable jurors
`could not reach a contrary conclusion.’” Id. (quoting Baisden v. I’m Ready
`Prods., Inc., 693 F.3d 491, 498 (5th Cir. 2012), cert. denied, ––– U.S. –––, 133
`S. Ct. 1585 (2013)). In conducting our review, we must draw all reasonable
`inferences in the light most favorable to the verdict and cannot substitute other
`inferences that we might regard as more reasonable. Westlake Petrochems.,
`L.L.C. v. United Polychem, Inc., 688 F.3d 232, 239 (5th Cir. 2012). For “‘it is
`the function of the jury as the traditional finder of the facts, and not for the
`Court, to weigh conflicting evidence and inferences, and determine the
`credibility of witnesses.’” Roman v. W. Mfg., Inc., 691 F.3d 686, 692 (5th Cir.
`2012) (quoting Mosley v. Excel Corp., 109 F.3d 1006, 1009 (5th Cir. 1997)).
`A reasonable jury could have concluded that Appellants’ statements
`were false. Eastman introduced evidence of tests conducted by four separate
`laboratories that found no evidence of estrogenic activity in Tritan. Eastman’s
`expert witnesses testified that Tritan was non-harmful and was EA-free.
`Eastman’s experts also testified that most of Appellants’ tests were not
`scientifically reliable, and that the few reliable tests actually showed no
`evidence of EA. No expert on either side ever testified that Tritan is harmful
`to humans. Of course, Appellants offered their own evidence. Dr. Bittner
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`No. 13-51087
`testified extensively about his expertise and about the reliability of Appellants’
`testing methods. Multiple expert witnesses testified that Appellants’ tests
`were scientifically reliable and could accurately detect the presence of EA.
`After hearing this evidence, the jury was free to, and apparently did, credit
`Eastman’s evidence that Tritan was EA-free over the contrary evidence
`presented by Appellants.3 See Boh Bros. Constr. Co., 731 F.3d at 452 (“‘We are
`not to tamper lightly with the considered judgment of those drawn together at
`one point in time to render a judgment that is representative of the good
`common sense of the American people.’” (quoting Stacey v. Allied Stores Corp.,
`768 F.2d 402, 406 (D.C. Cir. 1985)); see also Eastman Chem. Co., 969 F. Supp.
`2d at 761 (noting “the capability of juries to understand scientific evidence and
`weigh the credibility of the competing experts, notwithstanding their
`contradictory conclusions and dogmatic assertions” (internal quotation marks
`omitted)).
`In any event, the jury also found that Appellants’ statements were
`misleading, and Appellants do not challenge the sufficiency of the evidence on
`that point. The jury’s finding that the statements were misleading serves as
`an independent basis for the district court’s injunction. See 15 U.S.C.
`§ 1125(a)(1) (imposing liability for any “false or misleading description of fact,
`or false or misleading representation of fact” (emphases added)). The district
`court properly instructed the jury that it could find the challenged statements
`“misleading” even if they were not literally false, and that liability for
`misleading statements would only attach with additional findings of
`“deception” and “materiality.” Sure enough, the jury found that the statements
`
`3 The parties debate whether our circuit should adopt the “tests-prove” standard of
`liability, see Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1309 (11th Cir. 2010), and whether
`the district court should have submitted a “tests-prove” instruction to the jury. We need not
`address this question because the jury, by finding that Tritan does not have EA, necessarily
`also found that Appellants’ tests did not prove that Tritan has EA.
`12
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`No. 13-51087
`were misleading, that they “deceived, or had the capacity to deceive a
`substantial segment of potential customers,” and that the deception was “likely
`to influence the purchasing decisions of consumers.” Accordingly, Appellants
`would be liable under the Lanham Act even if the evidence did not support a
`finding of actual falsity.
`Appellants attempt to clear this hurdle by asserting: “a jury that has
`been wrongfully allowed, based on incorrect instructions, to determine that a
`statement is literally false cannot then be asked whether the same statement
`is misleading without the taint of the first answer destroying the reliability of
`the second.” Appellants offer no authority for this proposition, and we fail to
`grasp its logic. A jury’s view of whether a statement is misleading is not
`“tainted” simply because the jury is also asked whether that statement is false.
`To be sure, a jury that finds a statement to be false likely will find the same
`statement to be misleading. But the jury’s conclusion would not result from
`any “taint”—it would result from the jury’s assessment of the evidence. The
`jury in this case heard the evidence and was asked whether the Appellants’
`statements were false or misleading, and the jury answered both questions in
`the affirmative. The jury’s finding that the statements were misleading serves
`as an independent basis for the district court’s injunction, and we therefore
`find no reversible error on this point.
`IV.
`Appellants argue that the jury’s verdict cannot stand because of three
`
`purported errors in the jury instructions and verdict form. We review
`challenges to jury instructions for abuse of discretion and afford the trial court
`great latitude in the framing and structure of jury instructions. United States
`v. Carrillo, 660 F.3d 914, 925–26 (5th Cir. 2011). In order to demonstrate
`reversible error, the party challenging the instruction must show that the
`charge “creates substantial and ineradicable doubt whether the jury has been
`13
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`No. 13-51087
`properly guided in its deliberations.” Taita Chem. Co. v. Westlake Styrene, LP,
`351 F.3d 663, 667 (5th Cir. 2003) (internal quotation marks omitted). “The
`instructions need not be perfect in every respect provided that the charge in
`general correctly instructs the jury, and any injury resulting from the
`erroneous instruction is harmless.” Rogers v. Eagle Offshore Drilling Servs.,
`Inc., 764 F.2d 300, 303 (5th Cir. 1985). We do not reverse on the grounds of an
`erroneous instruction if the error “could not have affected the outcome of the
`case.” F.D.I.C. v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994).
`Appellants’ first argument is based on the district court’s jury
`instructions. The jury instructions advised the jury that it would be asked
`whether any of three statements were false or misleading. After listing the
`three statements, the instructions advised that the first statement could be
`found in Exhibit P108 and that the second statement could be found in Exhibit
`P110. Both of those exhibits are press releases describing the litigation
`between Eastman and Appellants. Appellants claim that the district court
`erred by allowing the jury to base its findings of falsity on statements
`Appellants made in press releases, because statements made in press releases
`are not commercial speech. The district court rejected this argument when it
`ruled on Appellants’ Motion for Judgment, reasoning that the press
`releases were commercial speech because they “were clearly designed to bolster
`[Appellants’] image and reaffirm [Appellants’] primary business strategy; in
`other words, to
`‘influenc[e] consumers to buy [Appellants’] goods or
`services . . . .’” Eastman Chem. Co., 969 F. Supp. 2d at 763 (quoting Seven-Up
`Co. v. Coca-Cola Co., 86 F.3d 1379, 1384 (5th Cir. 1996)). We need not
`determine whether the press releases were commercial speech because
`Appellants failed to object during the charge conference to this aspect of the
`district court’s jury instructions. As a result, Appellants have waived this
`argument. Texas Beef Grp. v. Winfrey, 201 F.3d 680, 689 (5th Cir. 2000) (“If a
`14
`
`

`
` Case: 13-51087 Document: 00512879044 Page: 15 Date Filed: 12/22/2014
`
`No. 13-51087
`party fails to object with specificity to a proposed instruction, the right to
`challenge the instruction on appeal is waived.”); see Fed. R. Civ. P. 51.4
`Appellants’ second argument concerns the district court’s instruction
`that “[a] false statement may be either literally false, or false by necessary
`implication.”5 Appellants contend that the Fifth Circuit has not adopted the
`“false by necessary implication” doctrine, and that it should not do so here.
`Under the “false by necessary implication” doctrine—which has been adopted
`by the First, Second, Third, Fourth, Ninth, and Federal Circuits—a statement
`may be false when, “considering the advertisement in its entirety, the audience
`would recognize the claim as readily as if it had been explicitly stated.” Clorox
`Co. Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24, 35 (1st Cir.
`2000). We need not decide whether to adopt the “false by necessary
`implication” doctrine because, as already discussed, the jury found all of
`Appellants’ statements to be both literally false and misleading. The jury’s
`finding that the statements were misleading serves as an independent basis
`for the district court’s injunction, regardless of whether the instruction about
`falsity was proper.
`Appellants’ third argument relates to the second statement submitted to
`the jury. The district court, instead of enumerating actual statements
`Appellants made about Tritan, asked the jury whether “statements to the
`effect that Tritan, or products made with Tritan, are dangerous to human
`health because they exhibit estrogenic activity” would be false or misleading.
`
`
`4 If error is not preserved, we may review for plain error. Taita Chem. Co. v. Westlake
`Styrene, LP, 351 F.3d 663, 668 (5th Cir. 2003). Appellants have not argued, much less
`demonstrated, that the district court’s instruction constituted plain error.
`
` Appellants objected in the district court to the false by necessary implication
`instruction “on the grounds that the doctrine of falsity by necessary implication has not been
`adopted by a