Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Fla.: Articles allegedly categorizing doctor’s practice as “health fraud” not commercial speech, (Mar 18, 2015)

By Greg Hammond, J.D.

The Society for Science-Based Medicine was entitled to summary judgment on Lanham Act and unfair competition claims concerning two articles that criticize a doctor who provides medical treatment to patients with “unmet medical needs.” In granting summary judgment, the federal district court in Fort Pierce, Florida, determined that the two articles did not constitute commercial speech (Tobinick v. Novella, March 16, 2015, Rosenberg, R.).

Background. Plaintiff Edward Tobinick is a doctor who treats patients through two institutes—“Edward Lewis Tobinick M.D.” and “INR PLLC,” both doing business as the “Institute of Neurological Recovery.” Dr. Steven Novella published two articles that contained allegedly false statements concerning the viability of Tobinick’s treatments, the scientific literature discussing those treatments, the size and locations of Tobinick’s institutes, and—by implication—the categorization of Tobinick’s practice as “health fraud.”

Tobinick filed suit against Novella and the Society for Science-Based Medicine, Inc., alleging violations of the Lanham Act, unfair competition, trade libel, and libel per se. The Society, a not-for-profit corporation, moved for summary judgment.

Lanham Act, unfair competition. The court granted the motion for summary judgment with regard to the Lanham Act and unfair competition claims, finding that no reasonable jury could find that the allegedly false or defamatory statements constitute commercial speech. Neither of the articles proposed a commercial transaction, and they did not relate solely to the economic interests of the Society. In addition, the first article only referenced Tobinick’s products, not competitors’ products, and the second article only discussed Novella’s medical practice to illustrate his belief that he and Tobinick are not competitors. Lastly, the court noted that there was nothing in the record to indicate that the articles containing the allegedly false or defamatory statements do not remain free to view online.

Libel claims. The court also found that the Society was entitled to pre-suit notice of Tobinick’s state law defamation claims. Consequently, the Society was dismissed without prejudice for Tobinick to refile a separate suit with claims brought solely against the Society after notice is properly provided.

The case number is 9:14-CV-80781-ROSENBERG/BRANNON.

Attorneys: Aaron R. Gott (Bona Law, PC) for Edward Lewis Tobinick, MD. Marc John Randazza (Randazza Legal Group, PLLC) for Steven Novella, MD.

Companies: Society for Science-Based Medicine, Inc.

Cases: Advertising FloridaNews