True or False: the Expanding “false by Necessary Implication” Doctrine in Lanham Act False Advertising, and How a Revitalized Puffery Defense Can Solve This Problem

In September of 2000, McNeil Nutritionals began marketing Splenda, its new no-calorie sweetener, using the tagline “made from sugar so it tastes like sugar.”1 The company spent approximately $235 million in advertising and promotional materials to establish its unique brand identity that capitalizes on Splenda’s sugar origin and sugar-like taste.2 The campaign was effective—in 2007, Splenda was the leading no-calorie sweetener in dollar sales in the United States.3 However, this seemingly innocuous tagline led to a flurry of ongoing legal troubles for McNeil.4 Merisant, a competitor that produces popular sweeteners Equal and Nutra-Sweet, sued McNeil for false advertising based on this statement, leading a court to devote dozens of pages to determining the truth of the simple claim, “Made from sugar so it tastes like sugar.”5 The court parsed through highly complex linguistic and scientific testimony and consumer survey evidence, but did not conclusively determine whether this statement is true or false.6 The case was highly