it is likely to deceive or confuse customers.” Id. (quoting S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 238 (2d Cir. 2001)). “A message can only be literally false if it is unambiguous.” Church & Dwight Co. v. SPD Swiss Precision Diagnostics, GmBH, 843 F.3d 48, 65 (2d Cir. 2016) (citing Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 158 (2d Cir. 2007)). In other words, “if the language or graphic is susceptible to more than one reasonable interpretation, the advertisement cannot be literally false.” Time Warner, 497 F.3d at 158. On the other hand, a statement is “likely to deceive or confuse,” and is “impliedly false” rather than literally false, when it leaves “an impression on the listener or viewer that conflicts with reality.” Church, 843 F.3d at 65 (citations omitted).
In addition to falsity, under either theory, “the plaintiff must also demonstrate that the false or misleading representation involved an inherent or material quality of the product.” Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 63 (2d Cir. 2016) (citations omitted). In other words, the alleged misstatement must be “likely to influence purchasing decisions.” Id. (quoting Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 855 (2d Cir. 1997)). Moreover, to establish a false-advertising claim, a plaintiff must also plausibly allege “that the false statement was made in
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