Apples advertisements had made various claims about the iPhones resistance to damage when submerged or otherwise exposed to water, including that some models could survive depths of 4 metres (13.1 feet) for 30 minutes. Analyze it for FTC and state standards. See also the decision below and apply the ruling to your analysis.

*** FTC v Brown & Williamson Tobacco Corp.

118 F.2d 35 (D.C.Cir. 1985).

BORK, Circuit Judge

The Federal Trade Commission brought this enforcement proceeding in the district court to enjoin the Brown & Williamson Tobacco Corporation (B & W) from deceptively advertising the tar content of its Barclay kingsize cigarettes. B & W advertises these cigarettes as being 1 mg tar by a recognized method used by B & W and supported by independent laboratories. The FTC alleges that Barclays advertising claim is false and deceptive and so violates section 5(a) of the Federal Trade Commission Act, 15 U.S.C. sec.45(a) (1982). The district court agreed and enjoined B & W from advertising any tar number for its Barclay cigarettes without receiving prior FTC approval. Because we find the injunction broader than reasonably necessary to prevent deception, we affirm in part but remand to the district court to modify the injunction consistent with this opinion. Shortly after introduction of Barclay, two of B & Ws competitors, the R.J. Reynolds Tobacco Company and Philip Morris Incorporated, complained to the FTC that the 1 mg tar claim was inaccurate and misleading. They alleged that the Barclay filter differs from other filters so that when the cigarette is smoked between human lips its air ventilation system is inevitably obstructed and the cigarette delivers disproportionately more tar and nicotine than other comparably rated cigarettes. Because the FTC smoking machine does not reproduce the obstruction caused by human lips, B & Ws competitors claimed that it did not accurately rate the Barclay. They also argued that other low-tar cigarettes are not subject to this phenomenon because they have a different filter design. The Commission undertook a comprehensive inquiry to determine whether the Barclay cigarette was accurately rated by the current testing method. The Commission solicited evidence from all the major cigarette companies including B & W. In addition, three consultants were retainedeach an expert in the chemistry of tobacco useto assist in evaluating the evidence. The Commission did not otherwise engage in independent efforts to gather evidence or conduct studies but attempted to act as an impartial factfinding body. R.J. Reynolds and Philip Morris each submitted studies purporting to show that the tar and nicotine yield of Barclay cigarettes is increased when they are smoked by humans. B & W submitted contrary studies measuring smoke constituents in human plasma and purporting to show that Barclays FTC ratings correctly reflected the amounts of tar and nicotine actually ingested by Barclay smokers as compared to smokers of competitive 1 mg tar cigarettes. The three FTC consultantsevaluating the studies independentlyfound that the Barclay cigarette is not properly ranked by the FTC testing method and yields substantially more tar than other comparably rated cigarettes when smoked by humans. Asked to estimate what Barclays tar rating should be, the consultants gave amounts ranging from 3 mg to 7 mgstill within the ultra-low-tar range of cigarettes. On July 7, 1983, the FTC filed the present action in the United States District Court for the District of Columbia seeking injunctive relief pursuant to section 13(b) of the FTC Act, 15 U.S.C. sec.53(b) (1982). The Commission sought permanently to enjoin B & W from continuing to advertise either that Barclay is 1 mg tar by a recognized method used by B & W and supported by independent laboratories or that it is 99% tar free. The FTCs complaint alleged that Barclays advertising was false and deceptive when considered against the background of the Commissions rating system for tar and nicotine. The FTC claimed that the Barclay advertisement would mislead consumers into believing both that Barclay delivers approximately the same amount of tar to human smokers as other cigarettes rated 1 mg tar, when smoked in the same manner, and that Barclays 1 mg tar designation is an official government rating. The district court held that B & Ws claim that Barclay is a 1 mg tar cigarette is false and deceptive under the FTC Act. In evaluating Barclays 1 mg tar claim, the district judge held that this claim would mislead consumers who over the years have come to rely on the FTCs cigarette rating system. B & Ws principal claim on appeal is that the district court erred as a matter of law in not requiring direct survey evidence of consumer deception. B & W claims that without such evidence, the district court had no basis for determining that consumers are deceived by the 1 mg tar claim or for determining that this deception is material. In addition, B & W asserts that the district courts permanent injunction is a sweeping prior restraint on constitutionally protected commercial speech. B & W asks that the injunction be vacated and replaced by a remedy no more restrictive than necessary to prevent the deception shown. We address each of B & Ws contentions in turn. In considering charges of false and deceptive advertising, the publics impression is the only true measure of deceptiveness. The Lanham Act states that false advertising cases relied on by the appellant clearly do suggest that if the language of the advertisement is not unambiguous, then the trial judge may be compelled to examine consumer data to determine first the message conveyed. Thus, if the lower court confronts an advertisement involving literally true or grammatically correct statements, the trial judge cannot make a finding of deceptiveness unless the parties provide evidence of substance about what the person to whom the advertisement is addressed find[s] to be the message. We do not mean that consumer survey data must always underlie any finding of tendency to deceive in such cases. Evidence of consumer reaction usually [takes] . . . the form of market research or consumer surveys, but a trial court may accord other forms of evidence substantial weight if that evidence appears reliable. Unless the district courts finding is clearly erroneous we must uphold its conclusion that the 1 mg tar claim, although literally true, is inherently deceptive for Barclay cigarettes. The claim of inherent deception rests on three factual premises: (1) consumers rely on tar ratings to make comparative assessments of the health effects of cigarettes; (2) Barclay cigarettes deliver disproportionately more tar than other similarly rated cigarettes; and (3) disclaimers explaining the difference will prove ineffective. We conclude that the record supports the district courts findings on all three of the factual predicates above, and that none of the findings is clearly erroneous.