Advertising the best XYZ product based on a user survey could win the tight consumer dollar, but a business better be able to back up that claim if a competitor thinks otherwise.

False advertising lawsuits and claims of unfair competition have grown in the midst of recessionary pressures and the explosion of online tools during the past two years, says Mike Keyes, a K&L Gates LLP partner and attorney who lives in Spokane and works in the firm's Spokane and San Francisco offices.

Keyes specializes in cases involving claims of patent, copyright, and trademark infringement, as well as unfair competition and false advertising. Nationally, he is playing a role as one among a handful of attorneys defending Kraft Foods Inc. and its Oscar Meyer hot dog brand in a false-advertising lawsuit brought by Sara Lee Corp. Sara Lee, which makes Ball Park Franks, is disputing Oscar Mayer ads that brag its dogs beat Ball Park Franks in a national taste test.

While these types of cases draw national attention, Keyes says false advertising and unfair competition affect both small and larger businesses, in either local or national ad campaigns. This is especially true, he says, as a greater number of businesses can reach more people through different online avenues.

"Everyone is out there competing for consumer dollars, and sometimes they push the envelope with false advertising, so there's been an increase in the past couple of years of false advertising litigation," Keyes says.

He adds, "Part of it is the economy and part of it is the emergence of social media. There are more places to advertise, and interactive media has become an effective tool for getting advertisements out."

Another factor is greater federal regulation of certain industries, such as for food and drug products, says Whitney Baran, a K&L Gates attorney in Spokane.

"There's been somewhat of a rise in false advertising cases since 2009 nationally," Baran says.

She also works with intellectual property litigation cases, including false advertising issues and unfair competition claims. Examples of unfair competition include trademark infringement, theft of trade secrets, and actions to force another competitor out of the market through practices such as "predatory" low pricing.

Both Baran and Keyes spoke on these issues in May before Spokane members of the American Advertising Federation.

Social media and other online tools have broadened vastly how businesses promote products and services, allowing small businesses to participate in the same venues as large companies.

Half of all U.S. adults are now on social networks, and use among baby boomers is growing, says an Aug. 26 report from the Pew Internet & American Life Project. Among baby boomers ages 50 to 64, 32 percent of them said they use a social networking site on a typical day, the report says, up from 20 percent a year ago.

"It's much more interactive, social media is, than even a couple of years ago," Keyes explains. "There's much more targeted advertising that takes place now through various online sites to particular market segments. When you add all of that together, it's resulted in a fairly significant increase in false advertising disputes; some of them are on a national scale and some are local as well. This isn't just a phenomenon of big advertising."

Even as recently as five years ago, businesses mainly just had the option of print, television, radio, and billboards to convey a message, Keyes says. He adds, "With social media and other online options, everyone can advertise and do so in an effective way."

At the same time, the Internet seems to be a breeding ground for potential mischievousness for false advertising.

"I can't think of a case I've been involved with recently that didn't involve allegations of false advertising with a technological aspect to it through Facebook, or Twitter, or the traditional interactive website," Keyes says.

As another example of Internet influences, many bloggers write about and rate various products, which prompted the Federal Trade Commission to enact rules in late 2009 requiring blog writers to disclose in their posts if they receive items for free or were paid to try a product and write about it.

There also are more opportunities now for competitors to notice another company's claims.

Baran says one example that's drawn national attention involves the Enfamil baby formula. Its manufacturer, Mead Johnson & Co., this year agreed to a $12 million class-action lawsuit settlement after it was alleged that Mead Johnson had falsely claimed its formula had nutrients that weren't available in other baby formulas. Mead Johnson denied any wrongdoing.

In general, Baran says businesses should keep in mind that a competitor may sue if that rival company believes an advertising statement is false or misleading. She adds, "Make sure it's quantifiable. If the statement is based on a survey or based on an award, that gets into an issue where you better be able to prove it."

Baran says people can look up general Federal Trade Commission guidelines on endorsements and testimonials on the FTC website. Advertising is regulated by the authority of the FTC, which can investigate claims and take corrective action.

In addition to the FTC, state governments can bring legal actions against companies through their attorney general's offices.

Keyes says there's also an industry watchdog, called the National Advertising Division, which will hear disputes in advertising claims and give advisory rulings. Keyes says that the division's rulings have a high compliance rate because if a company fails to adhere, it refers cases to the FTC.

Keyes suggests as a general rule that people make sure advertising claims are substantiated.

"Any time you're making a claim about your products that is a factual claim, and there's some objective criteria you're using to make the claim, you need to make sure your advertising is supported by the objective criteria," he says. "If you say we have the best burgers in Spokane, making that type of claim, that's what we call puffery. It's just bluster."

Or in other words, solely using the term "best burger" is subjective, and such puffery isn't considered false advertising.

He adds, "But if you say we have the best-tasting burgers in Spokane as voted by consumers, now you've objectified it. You've given it something that is based on a certain criteria. If you've simply had three consumers you've interviewed who tested your product, is your claim substantiated?"