Circuit Split on False Advertising Standing

The Eighth Circuit did not take sides on a circuit split on false advertising standing in American Ass'n of Orthodontists v. Yellow Book USA, 434 F.3d 1100 (8th Cir. 2006) ( /06/01/043521P.pdf). The AAO is a national trade organization of orthodontists. They sued Yellow Book for false advertising because Yellow Book lists general dentists under the heading "Dentists-Orthodontists." The circuits are split as to the proper test for standing for a false advertising claim: (1) some circuits hold only a competitor may have false advertising standing; (2) other circuits apply a more flexible multi-factor test that permits noncompetitor standing. The Eighth Circuit noted the split but declined to select a test because the AAO would fail to establish standing under either test.